Posts tagged martial arts

A waiver of liability is a scary document for any parent to read.  You are effectively entrusting your child’s safety to someone with whom you agree, in most circumstances, should not be held accountable if something goes wrong.

Enter Wong v. Lok’s Martial Arts Centre Inc., a recent decision of the British Columbia Supreme Court.

The plaintiff in this case was a child who was injured when he was violently thrown to the ground in the course of a sparring match at a martial arts school.  The defendants were the company that owned the school and the individual who owned the company.  The child’s mother alleged that the defendants were negligent, claiming they should have taken certain preventative measures for sparring matches, including screening participants, instructing participants, requiring suitable protective gear or carefully supervising matches.

The defendants, in response, held up a waiver of liability signed by the child’s mother when the child started at the school:

CONDITIONS OF MEMBERSHIP AND RELEASE

It is expressly agreed that all exercises and treatments, and use of all facilities shall be undertaken by the student’s sole risk. LOK’S HAPKIDO SCHOOL and its affiliated studio’s (Flying Eagle Hapkido, Flying Tiger Hapkido Studio and any other studio’s) shall not be liable for any injuries, past/future medical complications, any claims, demand, injury, damages, actions or cause of actions whatsoever, including without limitation, those resulting from acts of active or passive negligence on the part of Lok’s Hapkido School.

YOU ARE RESPONSIBLE FOR ALL INJURIES.!

The mother claimed she did not understand the clause and, in any event, knew she had to sign it for her son to attend the school.  The defendants applied to have her claim dismissed.  The thrust of their argument: the clause is valid – a parent is entitled to enter into a contract on behalf of a child to waive that child’s right to bring a claim in negligence.

The court rejected the defendants’ application primarily on the basis that the Infant Act (British Columbia) “does not permit a parent or guardian to bind an infant to an agreement waiving the infant [i.e. minor]’s right to bring an action in damages in tort”.

This statement of law is surprising because waivers of liability are everywhere.  The court hinted at why this is so with a quote from the Law Reform Commission of Manitoba:

Waivers are commonly obtained from minors and their parents.  They may have some practical force in persuading minors that they cannot sue, but their legal validity is doubtful.

At the end of the day, even though these waivers are generally not enforceable, they still have the practical effect of reducing the likelihood of claims because they generally lead parents to assume they signed away rights they might have had if their child gets hurt.  Law is about what people know they are entitled to, not just what might be on the books.  Parents, in particular, should know the difference, and schools should know what they can and can’t rely on to protect themselves from liability.