Features Procedures Safety & Training
Waivers Are Your Reserve Chutes

Life is dangerous. People get killed simply walking down the street.
Others take great risks, and never get harmed. Whether by grand design
or random luck, life happens, and people get hurt.

Aviation types look at situations with a keener eye. We are experienced
at evaluating risk, and recognize danger. We see the potential harm in
a situation, can determine how great the harm might be, and whether
elements are in place to reduce the potential for catastrophic harm.
Then, we either do the activity, or not.

How are non-aviation types protected from harm? Do they have the skills
to make risk assessment decisions? In most cases – yes – but they often
do not have control, and as a result place some of the risk in the
hands of others (us). There are times (aviation seems to have many)
when it is up to us to set the level of risk, and then hope things go
as planned.

Some activities are inherently dangerous. Playing hockey, heli-skiing,
and jumping out of a perfectly serviceable airplane! The courts say
“reasonable risk,” in a given activity, depends on the perils a person
might “reasonably expect” to encounter. Clear? The term “reasonable” is
where the bright line becomes blurry.

In the aviation context, we are considered “special skills” defendants.
When special skills defendants get sued, the courts hold that an
appropriate standard of care is one of an average, competent
professional in that same field. This is a “means” test, not a
“results” test – anyone can have 20/20 “hindsight” vision, and the fact
that an incident occurred does not necessarily mean that it was
negligently caused. You do not have to be the best of the best, but
simply an average and competent professional. I join in the collective
sigh of relief!

Being safe and competent should end the matter, but sometimes it does
not. Following “standard industry practice” is not a vaccine against
litigation, but simply offers the court an external assessment tool. It
is up to the court to determine the “standard industry practice” is
itself reasonable in all of the circumstances.

Another tool we can use is a Limitation of Liability Waiver. Let’s
consider sky-diving. Anyone who jumps out of a plane at 10,000 feet
should not complain if things go wrong – but they do. A proper waiver
can mitigate damages, and may even inoculate you against liability
altogether.

There are many “waiver” cases out there, from river-rafting, to
heli-skiing, to sky-diving, to scuba diving. These are activities in
which people can and do get hurt, and those people look to the operator
to compensate them afterwards. The differences in waivers are often
subtle, but the outcomes vary widely. In some cases the operators win,
in others they lose. There are common themes in the winning (and
losing) cases.

A waiver must be clear. Ambiguity is fatal. An Ontario judge wrote,
“When a waiver is signed before partaking in a potentially hazardous
activity, the defendant must ensure that each student understands the
legal effect of the waiver if she intends to rely on it against a
claim. It must be made clear to the students that they are forgoing all
rights to make any claim howsoever arising.”

A waiver should be easy to read. It should be in plain, ordinary
language, not legalese. Remember, the court will look for ambiguity in
the language, and will construe it against the operator if any is
found. A waiver should state that the person signing it will give up
his/her right to sue should things go wrong. It should also state which
acts are included. If you intend to include negligence, you must state
that. State whether it is negligence on the part of the operator, other
participants, or both. People have freedom of contract and are allowed
to sign away rights they normally enjoy. It just needs to be clear.

Participants should know about the waiver when they sign up for an
event. Waivers should be given in a setting that will allow
participants time to read them thoroughly. Questions should be
encouraged, and answers given. Staff should ask the participants if
they understand. Staff should be present when signing, and then witness
the signatures. Signed waivers should be kept safely by the operator
until after the event takes place.

Fortunately, this fuss is often unnecessary, and the skydivers exit the
plane and float safely down to earth. The waiver is operating in the
background (like the reserve chute) just in case things go wrong.

Neil MacDonald is a lawyer with Harper Grey LLP, practising in Aviation Law. He holds an ATPL-H, and flies as an Air Ambulance Captain on helicopters in B.C. nmacdonald@harpergrey.com. This is not a legal opinion. Readers should not act on the basis of this article without first consulting a lawyer for analysis and advice on a specific matter.