A Passion for the Mountains - The Alpine Club of Canada

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Liability in the Backcountry by John Savage One of the most dangerous activities taken each day, without much thought, is driving an automobile. Driving an automobile is more dangerous than backcountry skiing or mountaineering, although life insurers don’t ask whether we are drivers. That said, as mountaineers or backcountry skiers we must be vigilant about many aspects of safety and this has recently been highlighted by the deaths in British Columbia of 14 backcountry skiers by avalanche near Revelstoke in January 2003. So what are the obligations and liabilities of guides and others when taking to the backcountry? The cornerstone of liability photo by John Derick 10 Alpine Club of Canada ● Gazette ● Summer 2003 and legal obligation is the duty of care owed our legal neighbours, the standards to which a guide or leader and organization must adhere and that will be applied when we join an Alpine Club of Canada (ACC) adventure. Contracts can protect and defi ne liabilities – and provide a useful reminder of the dangers inherent in the activities we love. The ACC requires that participants in any activity sign a waiver and release of liability. This document draws the participant’s attention to the dangers involved in these activities and releases the Club, its staff, leaders and guides from all liability whether or not attributable to negligence. But what are the legal consequences of signing a waiver? Waiver of Liability The waiver of liability most guides and organizations require recognizes that there are inherent and sometimes unpredictable dangers associated with mountaineering. It is more than just a reminder, though, as it serves to protect these individuals and organizations who dedicate their lives to our enjoyment of these challenges. If liability were found, a single accident could easily bankrupt an individual or an organization. Without this protection, guiding as an activity and organizations promoting or facilitating mountaineering would be severely curtailed. In 1991 nine people were killed by an avalanche while heli-skiing in High Altitude Guide Training This summer, the International Federation for Mountain Guide Associations (IFMGA) is running its fi rst specialist course in high altitude guiding for professional mountain guides. The course will bring together some of the most experienced high altitude mountain guides to provide professional training for other guides wishing to lead parties at high altitude. The course is being held in Chamonix, France and is being organized by Steve Bell, president of the IFMGA High Altitude Working Group. “This course represents a very important step for the IFMGA as it will mean that the IFMGA qualifi ed guides can add high altitude training to their professional qualifi cations. Obviously, not all professional mountain guides will want to lead parties at high altitude, but those who do now have a specialist training programme. This step by the IFMGA will help to promote good standards and will mean, as in other mountain ranges, that the IFMGA badge is the professional qualifi cation to look for,” Bell said. Bell is also the chairman of the International Guiding Organisations 8000 (IGO8000) and has helped to develop training opportunities for leaders and Sherpas in the Himalayan countries. Such training is a vital part of developing appropriate standards for commercial treks and expeditions and promoting sustainable development for mountain communities. the Bugaboos. Twelve skiers and their guide were beginning the last run of the afternoon. The skiing conditions were spectacular. The skiers assembled at the base of the last run named Holy Shit. They were going to ski Bay Street, which is made up of three shaped features converging about midway down the slope into one large route to the bottom. After the guide provided instructions and commenced leading the group down, a tidal wave of snow swept everything before it. A textbook rescue was underway within minutes. All nine bodies were found within 45 minutes. Miraculously the guide survived. The guides and heli-skiing company were sued by one of the unhappy families. A waiver of liability had been signed by all the skiers, some of whom were not native English speakers. The courts have found that there is no general requirement that a party tendering a document for signature take reasonable steps to apprise the signing party of onerous terms or to ensure that they are read and understood. It is only where the circumstances are such that a reasonable person should have known that the party signing was not consenting to the terms that such an obligation in law arises. In this case the waiver had been sent by mail, it was written in English and the client was a foreign businessman who had an opportunity to read it or have it translated. By signing the waiver the Court found he was prepared to be bound by the contract, whether he had actually read and understood it or not. The waiver was not misleading. It stated the dangers in frank terms. It warned of the danger of avalanche. It expressly excluded liability for negligence. The court found that if there was negligence it was covered by the waiver and therefore there was no liability: Ocha v. Canadian Mountain Holidays Inc. et. al. No. C922041, Vancouver Registry, September 25, 1996. Waivers of liability are important and can be effective and have legal consequences. A properly framed waiver can exclude liability for negligence. But it is also remarkable how ineffective waivers are if negligence is demonstrated to a court. Negligence: Duty & Standard of Care Where there is a duty of care, what is the standard of care required of a guide that will
e applied against a legally effective waiver? In the Canadian Mountain Holidays (CMH) case it was described as the standard of care of a fully qualifi ed, experienced, professional heli-ski guide which required that, amongst other things, the guide always be observant for the unexpected and to continually test conditions. In Scurfi eld v. Cariboo Helicopter Skiing Ltd. (1993), 74 B.C.L.R. (2d) 224, the BC Court of Appeal described the appropriate duty of care thus: “…the duty of care which lay on the defendants was not to expose their guests to risks regarded in the business as unreasonably high, whether from avalanche or any other hazard to which participants in the sport are normally exposed. To enjoy the excitement of skiing in mountain wilderness areas participants are necessarily exposed both to risks which the careful skier is able to avoid and certain risks also which such skiers may be unable to avoid, including some risk of being caught in an inescapable avalanche.” The approach to what is unreasonable risk to be avoided is a judgment that is not to be made in the perfect vision of hindsight – it must be made in the context of a guide’s limited ability to foresee future events, similar to that applied to physicians in the care of their patients: Lapointe v. Hospital Le Gardeur, [1992] 1 S.C.R. 351 (S.C.C.). The risk must not be regarded in the business as unreasonably high. That is, the courts will look to standards for the application of skill and knowledge that are required in the business or industry of reasonably competent guides at the time the event occurs. In making decisions about risks, guides are required to exercise the skill and care of reasonably competent guides. They are required to have the education, instruction and experience appropriate to the task at hand. As could be expected, the program and modus operandi of the touring company was also brought into question in the litigation. The company brought in consultants for workshops upgrading the knowledge and information of guides. Every guide was required to attend a week-long retraining workshop each year. CMH was found to have applied a snow stability assessment system that was state of the art. CMH applied a principled approach to data collection and applied information from a variety of sources in making decisions. Guides collected data and snowpack profi les throughout the winter. There were daily exchanges of information and the sharing of observations between guides and group decision making with extensive powers of veto. The Court concluded that there was no negligence by CMH in its training of guides and the safety procedures it employed. So the action was dismissed on two grounds – the fact of an effective waiver and the absence of negligence in the conduct of the guides and operator, after a 90-day trial. Summary Mountaineering, heli-skiing and backcountry skiing all involve inherent dangers. When we join an Alpine Club activity and sign a waiver of liability we, as individuals, assume the risk in the activity. We do so because we assume that the guides, leaders and the Club that would otherwise owe us a duty of care will still exercise care to the legally required standard or higher. And we do so with the knowledge that, by waiving our legal rights, we hopefully ensure the continued viability of our club trips. John Savage is an Alpine Club member and a partner in the law fi rm of Crease Harman & Company in Victoria, BC. savage@creaseharman.com Alpine Club of Canada ● Gazette ● Summer 2003 11
Page 1: Vol. 17, No. 2 ● Summer 2003 A Pa
Page 4 and 5: To Every Place There is a Season by
Page 6 and 7: Kokanee Glacier Cabin The Alpine Cl
Page 8 and 9: Pumpkins in Training Winter Leaders
Page 12 and 13: above: Cathryn emerging from Mac’
Page 14 and 15: If You Go… Getting There Arrange
Page 16 and 17: A Passion for the Mountains by Amy
Page 18 and 19: Las Mujeres de Las Montanas 2002 Ce
Page 20 and 21: Water Wellness in the Backcountry b
Page 22 and 23: Trespassing at ACC Backcountry Huts

A Passion for the Mountains - The Alpine Club of Canada

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