There is a theory in civil liability called “assumption of risk”. This well-enshrined notion is based on the premise that an individual who willingly participates in a risky or dangerous activity and is aware of the inherent risks associated thereto cannot claim damages if he is injured when this risk or danger materializes. Two recent decisions illustrate that, while this notion has a limited application and depends on the facts and circumstances, liability claims still rest on the requirement of a fault.
Defendants at Fault: Claim Allowed
Climo c. ASN Canada FIA, 2022 QCCS 3538, arises from a day of karting races at the Monaco track in Trois-Rivières that ended tragically. The plaintiff, an 18-year-old pilot, had a severe accident when his kart hit a bale of hay before colliding into a concrete wall, ejecting the pilot from his seat. He suffered numerous injuries, mainly brain injuries, for which he was hospitalized for 47 days.
The victim and his parents sued the national federation that governs karting in Canada, the organization that presented the race and the organization that operated the track.
The Superior Court first points out that those who offer sporting activities have an implicit contractual obligation of security. This is an obligation of means. Sports, especially motor sports, carry a high risk of injury. However, this does not mean that any injury caused by a racing accident will be considered as an inherent risk of that sport. Assumption of risk only extends to the normal risk reasonably foreseeable for the driver under the circumstances.
The evidence revealed that the turn where the accident occurred was “a likely impact zone” [par 164]. Bales of hay had been placed to absorb the shocks, but they were not wrapped in plastic, whereas the regulations dictated that they should be. The wheel of the victim’s kart got stuck in the hay, which caused the loss of control.
As a result, the plaintiff was exposed to an abnormal risk, that exceeded the limits of what he had implicitly accepted, and the severe injuries that he sustained were the consequence of the defendants’ fault.
The defendants were held responsible for the accident and condemned to pay an amount in damages agreed to by the parties before the trial, under a confidential agreement.
Absence of Fault: Claim Dismissed
Lalancette c. F3 Sports (Québec inc.) (isaute Québec), 2022 QCCS 3997, is also a recent decision rendered by the Superior Court, which took an opposite direction by dismissing the claim of the victim of a trampoline accident.
On December 23, 2018, the plaintiff, a 23-year-old man, went to a trampoline facility accompanied by two friends. He broke his tibia after jumping from a podium towards a trampoline, then into a pit filled with foam cubes. As a result of his fracture, the plaintiff had to undergo three operations. The evidence revealed that the fracture had been caused by the plaintiff landing on one foot.
The Court considered the obligation of security imposed upon the operator of a public sporting centre, qualifying it as an obligation of means. It reiterated that the sporting facility’s obligation was to act reasonably in ensuring the safety of its customers and to avoid foreseeable accidents. However, the facility is not required to guarantee a result or to prevent all possible accidents.
The Court did not agree with the plaintiff’s argument that the podium from which he jumped was a trap. To be considered as a trap, the situation must be intrinsically dangerous, concealed, or abnormal. In this case, the Court judged that these criteria were not met since a reasonable person knows that when jumping from a podium, one will reach the trampoline canvas with more force than when jumping from the same level as the trampoline.
In addition, the sport facility had not failed in its obligation of monitoring. It made sure that participants would watch a video on safety measures before engaging in the activity. The video was also played continuously on a screen throughout the centre during the activity. Requiring the facility to evaluate each client and to ensure that they all would land on both feet at all times would be to impose an obligation of result.
In this case as in the previous one, the Court dealt with the theory of assumption of risks inherent in sports. The evidence demonstrated that the plaintiff had been informed of the risks. He had read and signed a release stipulating that the services offered by the facility could cause severe injuries or even death. Therefore, the Court ruled that the facility had committed no fault for which it could be held liable: the accident was the result of a risk inherent in the trampoline activity that had previously been disclosed to the plaintiff.
Under the circumstances, the Court dismissed the plaintiff’s claim.