Present: Dickson C.J. and Estey*, McIntyre, Wilson, Le Dain, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for ontario
Torts ‑‑ Negligence ‑‑ Sporting accident ‑‑ Competition inherently dangerous ‑‑ Participant visibly intoxicated ‑‑ Whether or not competition organizers had a positive duty to take steps to remove drunk competitor from competition.
Respondent, as a promotion for its ski resort, held a competition which involved two‑person teams sliding down a mogulled portion of a steep hill in oversized inner tubes. Appellant entered the competition, signed the entry and waiver form without reading it and paid the entry fee. During the competition, appellant suffered a neck injury in the second heat and was rendered a quadriplegic. He was visibly drunk at the start of that heat and had suffered a cut above the eye in the first. The owner of Sundance had asked appellant if he was in any condition to compete in the second heat but did nothing to dissuade him from continuing on. The resort manager, too, had suggested that appellant should not continue the competition but took no further steps to restrain him when he insisted on competing.
Appellant successfully sued respondent in tort but was found to be contributorily negligent. He was awarded 75 per cent of his damages. A majority of the Court of Appeal overturned the trial judge's finding of liability. The issue on appeal to this Court is whether the ski resort had a positive duty at law to take steps to prevent a visibly intoxicated person from competing in its dangerous "tubing" competition.
Held: The appeal should be allowed.
Respondent as the promoter of a dangerous sport owed a duty of care to the appellant to take all reasonable steps to prevent him from participating in the sport when it was aware that he was visibly intoxicated. Respondent did not discharge that duty. While it may be acceptable for a ski resort to allow or encourage sober able‑bodied individuals to participate in dangerous recreational activities, it is not acceptable for the resort to open its dangerous competitions to persons who are obviously incapacitated.
Injury to the appellant was clearly foreseeable in this case and respondent's failure to take reasonable steps to prevent appellant from competing because he was drunk caused appellant's injury.
Appellant did not, either by word or conduct, voluntarily assume the legal risk involved in competing. The volenti defence, therefore, was inapplicable. Appellant's participation in the tubing competition did not amount to an assumption of the physical risks involved, let alone the legal risks, given that appellant's mind was clouded by alcohol at the time. Although a contractual waiver clause can serve as a full defence to a claim in tort, the waiver signed by appellant did not relieve respondent of liability for its negligent conduct because it had not been drawn to appellant's attention and had not been read by him.
The trial judge's conclusion with respect to contributory negligence was not challenged and should not be interfered with by this Court.
Cases Cited
Considered: Jordan House Ltd. v. Menow, [1974] S.C.R. 239, aff'g sub nom. Menow v. Honsberger, [1971] 1 O.R. 129, 14 D.L.R. (3d) 545; distinguished: Dyck v. Manitoba Snowmobile Association Inc., [1985] 1 S.C.R. 589; referred to: Hempler v. Todd (1970), 14 D.L.R. (3d) 637; Ontario Hospital Services Commission v. Borsoski (1973), 54 D.L.R. (3d) 339; Stermer v. Lawson (1977), 79 D.L.R. (3d) 366; Dunn v. Dominion Atlantic Railway Co. (1920), 60 S.C.R. 310; Car and General Insurance Corp. v. Seymour, [1956] S.C.R. 322; Dube v. Labar, [1986] 1 S.C.R. 649.
Authors Cited
Binchy, William. Case Comment (1975), 53 Can. Bar Rev. 344.
Fleming, John G. The Law of Torts, 6th ed. Sydney: Law Book Co., 1983.
Linden, Allen M. Canadian Tort Law, 3rd ed. Toronto: Butterworths, 1982.
APPEAL from a judgment of the Ontario Court of Appeal (1985), 51 O.R. (2d) 608, 9 O.A.C. 286, 20 D.L.R. (4th) 552, 33 C.C.T.L. 73, allowing an appeal from a judgment of Fitzpatrick J. (1983), 43 O.R. (2d) 145, 150 D.L.R. (3d) 478. Appeal allowed.
Colin Campbell, Q.C., and Mark Freiman, for the appellant.
Stephen Goudge, Q.C., for the respondent.
The judgment of the Court was delivered by
1. Wilson J.‑‑The principal issue in this appeal is whether the ski resort had a positive duty at law to take certain steps to prevent a visibly intoxicated person from competing in the resort's dangerous "tubing" competition. The resort contends that it had no such duty but, if it did, it adequately discharged it. The appellant Crocker contends that it had such a duty and failed to discharge it.
I The Facts
2. The respondent, Sundance Northwest Resorts Ltd. ("Sundance") operates a ski resort. Sundance held a tubing competition in order to promote its resort. This competition involved teams of two people sliding down a mogulled portion of a steep hill in oversized inner tubes. One evening Crocker went skiing at Sundance with a friend. After their skiing they went to a bar at the resort to drink. At the bar a video of the previous year's race was shown. The video showed people being thrown from their inner tubes. Crocker and his friend did not, however, watch much of this video.
3. Crocker and his friend decided to enter the competition and attempt to win the $200 in prize money. They signed an entry and waiver form and paid the $15 entry fee. The trial judge found as a fact, however, that Crocker did not read the form and did not appreciate that it was a waiver.
4. The race was held two days later. On the morning of the race Crocker and his friend drank large quantities of their own alcoholic beverages. They also bought alcoholic drinks from the bar at the resort. They were wearing bibs that identified them as "tubing" competitors when they did so.
5. Crocker and his friend were the winners of their first heat. During the race the two were thrown from their tube and Crocker suffered a cut above his eye. Between the first and second heats Crocker drank two large swallows of brandy offered to him by the driver of a Molson beer van and was sold two more drinks at the bar.
6. The owner of Sundance, Beals, saw Crocker between the first and second heats. Noting Crocker's condition Beals asked him whether he was in any condition to compete in another heat. Crocker responded that he was. Beals did nothing more to dissuade him.
7. At the top of the hill Crocker fell down and his inner tube slid down the hill. The competition organizers obtained a new inner tube for him and his friend. Crocker was visibly drunk and Durno, the manager of Sundance, suggested that it would be a good idea if he did not continue in the competition. But Crocker insisted on competing and Durno took no further steps to restrain him.
8. Crocker and his friend hit a mogul on the way down the hill. The two were flipped out of their inner tube. Crocker injured his neck in the fall and was rendered a quadriplegic. Earlier that afternoon another competitor had been hospitalized for neck injuries sustained during another heat of the race.
9. Crocker sued Sundance in tort. At trial Sundance was held to be liable for 75 per cent of the damages suffered by Crocker. Crocker was found contributorily negligent.
II The Courts Below
Supreme Court of Ontario: Trial Division
10. Fitzpatrick J. held that Sundance was under a duty to warn Crocker that there was a risk of serious injury in tube racing and that it had failed to discharge that duty: see (1983), 43 O.R. (2d) 145. He found also that under the principle laid down in Jordan House Ltd. v. Menow, [1974] S.C.R. 239, the defendant resort was under an affirmative duty to prevent the plaintiff from putting himself at risk. The defendant "ought not to have permitted the fateful heat to commence until the plaintiff had been removed from it, by calling the provincial police, if necessary".
11. Fitzpatrick J. rejected the argument that the plaintiff had waived his right to sue the defendant in tort. The defendant could not rely on the general exclusion of liability clause in the plaintiff's ski pass. It did not constitute a waiver because: (a) the words did not exclude liability for negligence, and (b) the injury occurred outside the operations contemplated by the contract of which those clauses formed a part. Nor did the entry and waiver form signed by the plaintiff constitute a waiver of his legal rights because the provision was not drawn to his attention, he had not read it, and he did not know of its existence. Finally, Fitzpatrick J. rejected the argument that the plaintiff voluntarily assumed the risk of the activity. While he may have assumed the physical risk, he did not assume the legal risk. The plaintiff did, however, contribute to his injuries by his own want of care in deliberately getting drunk and participating in the races.
Ontario Court of Appeal
12. Finlayson J.A. (Arnup J.A. concurring) overturned the trial judge's finding that the defendant was liable: see (1985), 51 O.R. (2d) 608. He concluded that the plaintiff could not establish that the resort breached its duty to warn him of the risks involved. Finlayson J.A. stated at p. 621:
In my view there are two distinct factual situations here. The first relates to the plaintiff entering the race. As to that, it is my view that the defendant corporation took all reasonable steps to make the plaintiff aware of the risks of harm associated with the race. The plaintiff introduced a further and perhaps inevitable risk of harm in deliberately getting drunk. This created a second factual situation. I do not believe that this latter circumstance is the responsibility of the defendant corporation. Once it was brought to the attention of its president and manager they did all that could reasonably be expected of them in warning the plaintiff that he should not continue.
13. Further, he held that the defendant did not bear any affirmative duty to rescue the plaintiff that extended beyond the duty to warn him of the risks involved. Finlayson J.A. stated at p. 623:
Any responsibility they assumed ... was more than discharged by the warnings they gave. There was no special duty cast on them to disappoint the spectators and other contestants by cancelling the race or postponing it until the police could be summoned to remove the plaintiff from the hill. Nor did they have to risk a confrontation with him (and possibly Evoy) by trying to take his tube away.
Finlayson J.A. found it unnecessary to decide the quantum of damages issue. Had he been called upon to decide it he would have ordered a new trial to hear new evidence as to the life expectancy of the plaintiff.
14. Dubin J.A. in dissent would have upheld the trial judge's disposition of the liability issue. He noted that the resort had organized this risky event in order to make a profit. It was well aware of the plaintiff's intoxicated condition and, indeed, had supplied him with alcohol. It was therefore under a duty to take preventive measures to avoid the risk of grave injury to the plaintiff. It was not enough simply to "warn" him not to continue when such a warning would obviously be of no avail because of his inebriated state.
III The Issue
15. People engage in dangerous sports every day. They scale sheer cliffs and slide down the sides of mountains. They jump from airplanes and float down white water rivers in rubber rafts. Risk hangs almost palpably over these activities. Indeed, the element of risk seems to make the sports more attractive to many. Occasionally, however, the risk materializes and the result is usually tragic.
16. In general, when someone is injured in a sporting accident the law does not hold anyone else responsible. The injured person must rely on private insurance and on the public health care system. The broad issue in the present appeal is whether there is something to distinguish the situation here from the run of the mill sports accident. In order to answer this question the Court must address six sub‑issues. These are:
1. Did Sundance owe a duty of care to Crocker?
2. If a duty existed, what standard of care was required and was the standard met?
3. Did the failure to meet the standard of care cause the harm suffered?
4. Did Crocker voluntarily assume the risk?
5. Can Sundance rely on the waiver as a contractual defence to the tort claim?
6. Was Crocker contributorily negligent?
1. Duty of Care
17. The common law has generally distinguished between negligent conduct (misfeasance) and failure to take positive steps to protect others from harm (nonfeasance). The early common law was reluctant to recognize affirmative duties to act. Limited exceptions were carved out where the parties were in a special relationship (e.g. parent and child) or where the defendant had a statutory or contractual obligation to intervene. The philosophy underlying this reluctance to extend legal obligation is described in Fleming, The Law of Torts (6th ed. 1983), at p. 137:
The reluctance to extend the reach of legal obligation beyond this point drew sustenance from the long fashionable philosophy of individualism . . . . The laissez faire approach of the common law restrained men from committing affirmative acts of injury, but shrank from converting the courts into an agency for forcing men to help each other. Obviously, it involves a more serious restraint on individual liberty to require a person to act than it is to place limits on his freedom to act. Besides, the plaintiff's loss is unequal in the two situations. In the case of commission, the defendant has positively made his position worse: he has created a risk; in the case of inaction, he has merely failed to benefit him by not interfering in his affairs. Yet today, though far from defunct, the strength of these sentiments is steadily being sapped by an increasing sense of heightened social obligation and other collectivist tendencies in our midst. Accordingly, the legal doctrine which they once sustained is itself under retreat.
18. Canadian courts have become increasingly willing to expand the number and kind of special relationships to which a positive duty to act attaches. As Linden notes in his text on Canadian Tort Law (3rd ed. 1982), at p. 304:
There is a growing group of special relations which import an obligation to engage in positive conduct for the benefit of another. Normally, there is some element of control or some economic benefit inuring to the person as a result of the relation, which justifies the creation of the duty. For example, if there is a contract or a bailment, a failure to act may be actionable. It is not enough, however, if the contract is with a third person, as where a doctor agreed with the husband to attend his wife at childbirth. Carriers, innkeepers, warehousemen and public utilities, who hold themselves out to the public as being prepared to give service, are subject to this responsibility. So too, a master may be obliged to provide aid to one of his servants in peril, a shopkeeper to his invitee, a school to a pupil, and a shipmaster to a passenger. Obligations to take positive action are also imposed upon occupiers of premises to make their property safe for the reception of certain entrants and for passersby on the highway. A policeman may owe a civil duty to report dangerous road conditions. Institutions which have custody over people, such as hospitals, jails, and the like, may be obliged to take reasonable steps to protect those under their care. There will undoubtedly be additions to this list of special situations in the years ahead.
19. The Jordan House case, supra, is the leading Supreme Court authority on the imposition of a duty to take positive action to protect another. In this case the Court held that a tavern owed a duty of care to its intoxicated patron. The facts of Jordan House are conveniently summarized in a case comment by W. Binchy in (1975), 53 Can. Bar Rev. 344, at p. 346:
The facts, very briefly, were as follows: the plaintiff was a frequent patron of the defendant hotel's beverage room, where beer was served. The plaintiff's propensity to drink to excess and thereafter to make himself a nuisance to other patrons was well known to the proprietor of the establishment as well as to other employees‑‑indeed the plaintiff had been barred from the premises for a period of about a year before the events which gave rise to the action occurred.
On the fateful evening, the plaintiff arrived at the defendant's establishment at about five o'clock in the afternoon, in the company of his employer and commenced drinking. His employer left shortly afterwards but the plaintiff remained, being served drinks until ten o'clock in the evening, "past the point of visible or apparent intoxication". At that time the plaintiff began wandering around to other tables, and he was evicted by the hotel proprietor, who had been aware of the plaintiff's deteriorating condition for over three hours.
The proprietor knew that the plaintiff would have to make his way to his home "probably ... on foot" by way of a busy thoroughfare.
Shortly afterwards, the plaintiff was struck by a car and severely injured.
The driver of the car was held liable in negligence to the plaintiff since he had failed to respond adequately to a warning by another car of the plaintiff's presence on the highway.
20. The trial judge's decision was upheld by the Ontario Court of Appeal, sub nom. Menow v. Honsberger, [1971] 1 O.R. 129, 14 D.L.R. (3d) 545, and by this Court. Laskin J. commenced his analysis by summarizing at p. 247 the general common law position on liability in tort:
I return to the main issue. The common law assesses liability for negligence on the basis of breach of a duty of care arising from a foreseeable and unreasonable risk of harm to one person created by the act or omission of another. This is the generality which exhibits the flexibility of the common law; but since liability is predicated upon fault, the guiding principle assumes a nexus or relationship between the injured person and the injuring person which makes it reasonable to conclude that the latter owes a duty to the former not to expose him to an unreasonable risk of harm. Moreover, in considering whether the risk of injury to which a person may be exposed is one that he should not reasonably have to run, it is relevant to relate the probability and the gravity of injury to the burden that would be imposed upon the prospective defendant in taking avoiding measures. Bolton v. Stone, in the House of Lords and Lambert v. Lastoplex Chemicals Co. Ltd., in this Court illustrate the relationship between the remoteness or likelihood of injury and the fixing of an obligation to take preventive measures according to the gravity thereof.
Laskin J. then considered the relationship between the hotel and Menow and concluded that there was a close enough nexus to require the imposition of a duty of care on the hotel. He stated at pp. 248‑49:
The hotel, however, was not in the position of persons in general who see an intoxicated person who appears to be unable to control his steps. It was in an invitor‑invitee relationship with Menow as one of its patrons, and it was aware, through its employees, of his intoxicated condition, a condition which, on the findings of the trial judge, it fed in violation of applicable liquor licence and liquor control legislation. There was a probable risk of personal injury to Menow if he was turned out of the hotel to proceed on foot on a much‑travelled highway passing in front of the hotel.
...
Given the relationship between Menow and the hotel, the hotel operator's knowledge of Menow's propensity to drink and his instruction to his employees not to serve him unless he was accompanied by a responsible person, the fact that Menow was served not only in breach of this instruction but as well in breach of statutory injunctions against serving a patron who was apparently in an intoxicated condition, and the fact that the hotel operator was aware that Menow was intoxicated, the proper conclusion is that the hotel came under a duty to Menow to see that he got home safely by taking him under its charge or putting him under the charge of a responsible person, or to see that he was not turned out alone until he was in a reasonably fit condition to look after himself. There was, in this case, a breach of this duty for which the hotel must respond according to the degree of fault found against it. The harm that ensued was that which was reasonably foreseeable by reason of what the hotel did (in turning Menow out) and failed to do (in not taking preventive measures).
Thus the relationship between the hotel operator and the patron in this case was close enough to justify the imposition of a duty of care. This duty of care required the defendant to take certain positive steps to avert potential calamity.
21. The general approach taken in Jordan House has been applied in a number of cases. Car owners who have permitted or instructed impaired persons to drive their cars have been found liable (see: Hempler v. Todd (1970), 14 D.L.R. (3d) 637 (Man. Q.B.), and Ontario Hospital Services Commission v. Borsoski (1973), 54 D.L.R. (3d) 339 (Ont. H. Ct.)) as has the owner of a motorcycle who allowed a young unlicensed driver to use it (see: Stermer v. Lawson (1977), 79 D.L.R. (3d) 366 (B.C.S.C.)) The common thread running through these cases is that one is under a duty not to place another person in a position where it is foreseeable that that person could suffer injury. The plaintiff's inability to handle the situation in which he or she has been placed‑‑either through youth, intoxication or other incapacity‑‑is an element in determining how foreseeable the injury is. The issue in the present appeal is whether the relationship between Sundance and Crocker gave rise to this kind of duty.
22. The trial judge concluded that it did. He characterized this duty alternatively as a "duty to warn" or a "duty to rescue". I find Dubin J.A.'s approach to the issue analytically clearer. The question, in his view, was (p. 623):
...whether Sundance Northwest Resorts Limited, the defendant, owed a duty of care to take all reasonable measures to prevent the plaintiff from continuing to participate in the very dangerous activity which was under its full control and supervision and promoted by it for commercial gain when it became apparent that the plaintiff was drunk and injured . . . .
He concluded that such a duty of care did arise. I agree with Dubin J.A. that the relationship between Crocker and Sundance gave rise to such a duty.
23. Sundance set up an inherently dangerous competition in order to promote its resort and improve its financial future. Sundance employees were in charge of the way in which the event was to be conducted. Sundance provided liquor to Crocker during the event and knew of Crocker's inebriated and injured condition before the start of the second heat. Sundance officials were well aware that Crocker's condition heightened the chance of injury. Both Beals and Durno questioned Crocker's ability to continue. It is clearly not open to Sundance to characterize itself as a stranger to Crocker's misfortune. The nexus between Sundance and Crocker is much too close for that. Sundance must accept the responsibility as the promoter of a dangerous sport for taking all reasonable steps to prevent a visibly incapacitated person from participating.
24. The jurisprudence in this area seems to me to make this conclusion inevitable. When a railway company removes a drunken passenger from one of its trains it owes a duty of care to this passenger to take reasonable steps to see that the passenger does not come to harm (Dunn v. Dominion Atlantic Railway Co. (1920), 60 S.C.R. 310). Likewise, when a hotel ejects a drunken patron, it owes a duty of care to the patron to take certain steps to ensure that the patron arrives home safely (Jordan House). It would seem a fortiori that when a ski resort establishes a competition in a highly dangerous sport and runs the competition for profit, it owes a duty of care towards visibly intoxicated participants. The risk of calamity in the latter case is even more obvious than in the two preceding cases. I would conclude, therefore, that Sundance was subject to a duty to Crocker to take all reasonable steps to prevent him from entering such a competition. The question that must now be decided is whether Sundance took sufficient steps to discharge that duty.
2. Standard of Care
25. By definition, the standard of care is dependent on context. We must determine what steps a reasonable organization would have taken to prevent Crocker from competing in the tubing competition. In answering this question, as Laskin J. noted in Jordan House at p. 247, "it is relevant to relate the probability and the gravity of injury to the burden that would be imposed upon the prospective defendant in taking avoiding measures".
26. In Jordan House this Court concluded that the defendant did not take the reasonable steps required to protect the plaintiff from injury. Laskin J. stated at p. 248:
There is, in my opinion, nothing unreasonable in calling upon the hotel in such circumstances to take care to see that Menow is not exposed to injury because of his intoxication. No inordinate burden would be placed upon it in obliging it to respond to Menow's need for protection. A call to the police or a call to his employer immediately come to mind as easily available preventive measures; or a taxi‑cab could be summoned to take him home, or arrangements made to this end with another patron able and willing to do so. The evidence shows that the hotel had experience with or was sensitive to the occasional need to take care of intoxicated patrons. The operator had in other like instances provided rides. He also had spare rooms at the time into one of which Menow could have been put.
27. Numerous steps were open to Sundance to dissuade Crocker from competing. It could, for instance, have disqualified him when it realized he was drunk. This would have been the easiest course to follow. Or it could have tried to prevent him from competing. It certainly did not have to supply him with a fresh tube when he fell down on the slope before the second heat and his tube rolled down to the bottom of the hill! Sundance could have attempted to bring home to Crocker the risk of serious injury in competing while drunk. None of these preventive measures imposed a serious burden on the resort. And yet Sundance did none of them. Sundance officials made mild suggestions that Crocker might not be in any condition to race but this was as far as it went. I agree with the learned trial judge and with Dubin J.A. dissenting on the Court of Appeal that Sundance failed to meet its standard of care.
28. Finlayson J.A., for the majority of the Court of Appeal, thought otherwise. In his view Sundance did not have a duty to do anything more than warn "the participants as to the nature of the activity with sufficient detail that they can assess the risks themselves". This duty, in his view, was not heightened by Crocker's drunkenness. Indeed, Finlayson J.A. stated at p. 620 that:
...[Crocker's] conduct on the day of the race was most reckless as to his own welfare and he asks to be excused from the tragic consequences of his actions on the ground that he was inebriated. He ignores the fact that drunkenness carries with it its own hazards and asks the court to reject any concept of individual responsibility so far as he is concerned but to apply it, none the less, to the defendant corporation.
29. With all due respect to Finlayson J.A., this approach is completely at odds with the thrust of the existing case law. The fact that Crocker was an irresponsible individual and was voluntarily intoxicated during the tubing competition is the very reason why Sundance was legally obliged to take all reasonable steps to prevent Crocker from competing. While it may be acceptable for a ski resort to allow or encourage sober able‑bodied individuals to participate in dangerous recreational activities, it is not acceptable for the resort to open its dangerous competitions to persons who are obviously incapacitated. This is, however, what Sundance did when it allowed Crocker to compete. I conclude, therefore, that it failed to meet its standard of care in the circumstances.
3. Causation
30. Sundance strongly urged that, even if it was negligent, its negligence did not cause the injury suffered by Crocker. The argument here is that tubing is inherently dangerous and demands no skill whatsoever. It is thus no more risky to participate in this sport when inebriated than it is to participate in it when sober. Sundance submits, therefore, that Crocker's injury cannot be attributed to his drunkenness. The failure of Sundance to take reasonable steps to prevent Crocker from competing because he was drunk did not cause his injury.
31. This submission is completely at odds with a finding of fact made at trial. The trial judge found that the risk of injury was greater for an inebriated competitor. He said at p. 153:
It was possible for the contestants to slow their tubes and to steer them to some extent by the way they dragged their feet. There was, therefore, greater danger for an intoxicated competitor who would be less inclined to slow, and less able to slow or steer his tube so as to avoid the moguls.
It is not the role of this Court to question such an eminently reasonable finding of fact.
4. Voluntary Assumption of Risk
32. The defence of voluntary assumption of risk is based on the moral supposition that no wrong is done to one who consents. By agreeing to assume the risk the plaintiff absolves the defendant of all responsibility for it. As Fleming puts it in The Law of Torts, supra, at p. 264:
Obviously this defence bears much resemblance to contributory negligence. Most often, indeed, the two defences overlap: viz. whenever knowingly to assume a risk is also negligent, e.g. riding in a car with a drunk driver. But like intersecting circles, some cases support one defence without the other; thus to assume the risk may in some circumstances be perfectly reasonable or (per contra) the risk, though unreasonable, may not be fully appreciated.
As long as either defence defeated the plaintiff entirely, precise demarcation served only academic interest, but the introduction of apportionment for contributory negligence has posed a serious problem concerning the future role of voluntary assumption of risk as a complete defence. It seems rather odd that a plaintiff who is himself negligent might now fare better than one who is not, e.g. that an intoxicated passenger should stand a better chance against a drunk driver than a passenger who is sober. The judicial response to this dilemma has been to impose ever stricter requirements for the defence of volenti to the point where it is now but rarely successful.
Presumably the reason for not formally drawing the defence within the net of apportionment (or what would amount to the same, flatly abolishing it) is the feeling that people should remain free to agree to waive their legal rights, at least under conditions of free and informed choice.
Since the volenti defence is a complete bar to recovery and therefore anomalous in an age of apportionment, the courts have tightly circumscribed its scope. It only applies in situations where the plaintiff has assumed both the physical and the legal risk involved in the activity (see: Car and General Insurance Corp. v. Seymour, [1956] S.C.R. 322; Dube v. Labar, [1986] 1 S.C.R. 649).
33. In the present appeal an attempt could be made to found a volenti defence either on (a) Crocker's voluntary participation in a sport that was obviously dangerous or (b) the fact that Crocker signed a waiver form two days before the competition. I will examine each of these bases in turn.
34. The first basis can be disposed of in short order. Crocker's participation in the tubing competition could be viewed as an assumption of the physical risks involved. Even this, however, is dubious because of the fact that his mind was clouded by alcohol at the time. It is well‑nigh impossible to conclude, however, that he assumed the legal risk involved. Sliding down a hill in an oversized inner tube cannot be viewed as constituting per se a waiver of Crocker's legal rights against Sundance.
35. The argument that Crocker voluntarily assumed the legal risk of his conduct by signing a combined entry and waiver form is not particularly convincing either. The trial judge, having heard all the evidence, drew the following conclusion on the issue of the waiver at pp. 158‑59:
I find that no attempt was made to draw the release provision to Mr. Crocker's attention, that he did not read it, nor in fact, did he know of its existence. Therefore, Sundance had no reasonable grounds for believing that the release truly expressed Mr. Crocker's intention. In fact, in so far as he was signing anything other than an application form, his signing was not his act.
Given this finding of fact, it is difficult to conclude that Crocker voluntarily absolved the resort of legal liability for negligent conduct in permitting him, while intoxicated, to participate in its tubing competition. I would conclude, therefore, that Crocker did not, either by word or conduct, voluntarily assume the legal risk involved in competing. The volenti defence is inapplicable in the present case.
5. Waiver as Contractual Defence
36. Sundance correctly points out that a contractual waiver clause can serve as a full defence to a claim in tort. In Dyck v. Manitoba Snowmobile Association Inc., [1985] 1 S.C.R. 589, the plaintiff took part in a snowmobile race. The plaintiff collided with Wood, an association official, who following usual practice had signalled the end of the race by moving to the middle of the track. The collision caused the plaintiff to strike the outside wall of the track. The plaintiff was injured and sued the Association in tort. This Court agreed with the courts below that, while the Association had been negligent, it was exonerated from liability by the waiver clause in the entry form.
37. Sundance argues that the situation in the present appeal is not dissimilar to that in Dyck and that the waiver signed by Crocker should relieve Sundance of liability for its negligent conduct. In my view this is not the case. There is a very significant difference between Dyck and the present appeal which, in my view, renders the reasoning in Dyck inapplicable here. In Dyck the plaintiff had read the rules of the Association that purported to release the Association from liability for injuries suffered in the Association's races. The plaintiff in Dyck signed the waiver in full knowledge of the Association's intention to exempt itself from liability. Not so here. As already mentioned, the trial judge found that the waiver provision in the entry form was not drawn to the plaintiff's attention, that he had not read it, and, indeed, did not know of its existence. He thought he was simply signing an entry form. In these circumstances Sundance cannot rely upon the waiver clause in the entry form.
6. Contributory Negligence
38. The learned trial judge concluded that, since the plaintiff's voluntary intoxication contributed to the mishap, Crocker should be held to be 25 per cent contributorily negligent. Neither Crocker nor Sundance challenged this conclusion. I see no reason, therefore, for this Court to interfere with it.
IV Conclusion
39. Sundance put on a dangerous event to draw people to its resort and enhance its profits. It allowed, and indeed aided, Crocker, a visibly intoxicated person, to participate in the event. In so doing it breached the duty of care it owed him. It is, accordingly, liable for the damage that resulted from its negligence.
40. I would allow the appeal with costs, set aside the judgment of the Court of Appeal, and restore the judgment of Fitzpatrick J. on the issue of liability. I would order a new trial as to the quantum of damages. At trial the appellant's life expectancy was set at two years. The Court of Appeal received fresh evidence on the issue of the life expectancy of the appellant. The Court of Appeal were unanimous in the view that the fresh evidence would have necessitated a new trial on the issue of damages had Sundance been found liable. I agree. My conclusion as to liability, therefore, requires an order for a new trial on the issue of damages.
Appeal allowed with costs.
Solicitors for the appellant: McCarthy & McCarthy, Toronto.
Solicitors for the respondent: Gowling & Henderson, Toronto.
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