Q: I have heard some say that a waiver isn’t worth the paper it is written on is this true?
A:
It is understandable that Landowner’s are concerned about the liability they are exposed to allowing people to use their airstrip. That being said, it’s important to understand the statement “waivers are not worth the paper they are written on” is not necessarily true. In fact, as you can see from the following article, waivers have been interpreted in favour of the Releasee in BC: http://vancouversun.com/news/local-news/far-reaching-waivers-under-scrutiny-after-court-decision.
That being said, to say that every waiver will cover every releasee in every circumstance is not accurate. Liability waivers are contracts that contain exclusions of liability intended to minimize risk of liability to the greatest extent possible. Generally speaking, a waiver will be effective against a specific claim if the language of the exclusion refers to the circumstances of the accident for which the claim is being brought, and it excludes liability for risks or injuries caused by negligence and is otherwise valid.
We worked with BCGA to determine the types of activities or potential claims so that we can specifically address them in the waiver so increase the effectiveness. If the Landowners, however, are aware of other potential risks they want to address, we would be happy to review and see if inclusion would be beneficial. Further, if there are specific landowners or insurers that have any questions, please feel free to provide us with contact information and we can discuss with them.
As discussed, there are some other steps that are required for the effectiveness of a waiver. Specifically, the releasee (in this case BCGA / landowners) must take reasonable steps to bring the exclusion and waiver to the attention of the participant so that the effect of it is understood. This is why we made the reading and understanding of the waiver a condition on signing up to the PAAP. As well, why we made initial boxes under each part, so the pilot has to read each part and acknowledge understood the effect, among other attention-grabbing details.
We also made a pilot agree that he or she understood it was a requirement for them to have a passenger sign a waiver agreement (which again, the passenger must agree they have read and understood). This is to minimize the risk of third parties (passengers) having such claims against the landowners by having them also become party to a contract containing such exclusions. We also worked with BCGA to fully understand what types of activities/risks to specifically express as part of this passenger waiver.
There is always some risk that an accident/injury/damage happens falls outside the scope of a waiver, but with the broad coverage of the agreement, and the steps taken to bring the exclusions to the attention of the participant, we have taken steps to reduce that risk and make it enforceable. There is also increased risk with respect to passengers because you are relying on pilots to ensure that the waiver is brought to their attention and properly executed. These risks are inherent in such situations due to the practicality, and we have managed this risk by putting the onus on the pilot to bring it to the attention of the passenger and provide them with the means to do so (kneeboard agreements and waivers).
We have drafted the waivers and advised on the practical implementation in a manner intended to reduce the extent of liability for Landowners and BCGA to the greatest extent reasonably possible in these circumstances. These waivers are used as a tool tomanage and reduce risk, and while there is no way to fully guarantee that a waiver will cover every scenario and to the greatest extent possible, these waivers are by no means bound to be found ineffective against excluding the liability of the Landowners completely in every scenario. In fact, on the contrary, they are more likely to cover a specific circumstance based on their extensive coverage.
This all being said, because they are but one form of risk management in such cases, we do still recommend Landowners ensure they take steps as they see fit to further reduce risks (such as having adequate liability insurances in place (without exclusion for aviation risks)).
I trust these answer your question, but please feel free to contact us if you wish to discuss further.
Best regards,
Joe
A:
It is understandable that Landowner’s are concerned about the liability they are exposed to allowing people to use their airstrip. That being said, it’s important to understand the statement “waivers are not worth the paper they are written on” is not necessarily true. In fact, as you can see from the following article, waivers have been interpreted in favour of the Releasee in BC: http://vancouversun.com/news/local-news/far-reaching-waivers-under-scrutiny-after-court-decision.
That being said, to say that every waiver will cover every releasee in every circumstance is not accurate. Liability waivers are contracts that contain exclusions of liability intended to minimize risk of liability to the greatest extent possible. Generally speaking, a waiver will be effective against a specific claim if the language of the exclusion refers to the circumstances of the accident for which the claim is being brought, and it excludes liability for risks or injuries caused by negligence and is otherwise valid.
We worked with BCGA to determine the types of activities or potential claims so that we can specifically address them in the waiver so increase the effectiveness. If the Landowners, however, are aware of other potential risks they want to address, we would be happy to review and see if inclusion would be beneficial. Further, if there are specific landowners or insurers that have any questions, please feel free to provide us with contact information and we can discuss with them.
As discussed, there are some other steps that are required for the effectiveness of a waiver. Specifically, the releasee (in this case BCGA / landowners) must take reasonable steps to bring the exclusion and waiver to the attention of the participant so that the effect of it is understood. This is why we made the reading and understanding of the waiver a condition on signing up to the PAAP. As well, why we made initial boxes under each part, so the pilot has to read each part and acknowledge understood the effect, among other attention-grabbing details.
We also made a pilot agree that he or she understood it was a requirement for them to have a passenger sign a waiver agreement (which again, the passenger must agree they have read and understood). This is to minimize the risk of third parties (passengers) having such claims against the landowners by having them also become party to a contract containing such exclusions. We also worked with BCGA to fully understand what types of activities/risks to specifically express as part of this passenger waiver.
There is always some risk that an accident/injury/damage happens falls outside the scope of a waiver, but with the broad coverage of the agreement, and the steps taken to bring the exclusions to the attention of the participant, we have taken steps to reduce that risk and make it enforceable. There is also increased risk with respect to passengers because you are relying on pilots to ensure that the waiver is brought to their attention and properly executed. These risks are inherent in such situations due to the practicality, and we have managed this risk by putting the onus on the pilot to bring it to the attention of the passenger and provide them with the means to do so (kneeboard agreements and waivers).
We have drafted the waivers and advised on the practical implementation in a manner intended to reduce the extent of liability for Landowners and BCGA to the greatest extent reasonably possible in these circumstances. These waivers are used as a tool tomanage and reduce risk, and while there is no way to fully guarantee that a waiver will cover every scenario and to the greatest extent possible, these waivers are by no means bound to be found ineffective against excluding the liability of the Landowners completely in every scenario. In fact, on the contrary, they are more likely to cover a specific circumstance based on their extensive coverage.
This all being said, because they are but one form of risk management in such cases, we do still recommend Landowners ensure they take steps as they see fit to further reduce risks (such as having adequate liability insurances in place (without exclusion for aviation risks)).
I trust these answer your question, but please feel free to contact us if you wish to discuss further.
Best regards,
Joe
Joseph G. Romanoski, BA(Hons.), JD
Barrister and Solicitor*
Associate
Knight LLP
