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By Bob Kuhn
You are responsible for all your injuries.
The warning could not have been clearer. It was on the bottom of the disclaimer
signed by the young martial arts student’s parent. It was also in bold letters at the bottom of a notice, posted by the
door to the martial arts school.
But this did not stop Victor, the martial arts student, from commencing a legal
action against the school when he was injured in a sparring match. The same
parent that signed the disclaimer represented him in court proceedings.
The martial arts school made an application to court to have the whole case
dismissed, based on the signed disclaimer. The key question was whether a parent could sign away a child’s right to sue, in a case of alleged negligence.
The court’s ruling is a very important lesson to churches and charities that minister to
young people.
Most programs for children or youth require a disclaimer to be signed in advance
by a parent, and sometimes the child – releasing the program and anybody involved from liability for anything that
happens.
Often this is touted as ‘best practice,’ and insisted upon by insurance companies. But are these documents worth the
paper they are written on?
The verdict, in the case of Victor versus the martial arts school, declared
there is clear legal authority for the proposition that a minor (under the age
of 19) cannot be bound by a release or disclaimer, signed by him or her.
Further, this case appears to be the first decision of its kind that concluded a
parent is not able to bind a minor to an agreement that waives the legal rights
of that minor to sue for negligence.
So, what does a children’s ministry do to protect itself from the inevitable potential of being sued for
negligence when a child is injured? Despite taking great care and doing their
best, ministries inevitably involve risk.
In the case of some youth programs, they are built around the excitement of some
risk. It is difficult to imagine how a vibrant ministry for young people could
be entirely safe and risk-free. But if insurance is inadequate or inapplicable,
are disclaimers and releases from liability useless?
Despite this decision, the best practice continues to be to use disclaimers and
releases. However, great care must be taken when drafting and using these
forms. The case in question provides some guidance.
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The law clearly supports the use of releases to limit or eliminate liability in
recreational and other potentially risky activities. These agreements must be
signed in advance, with at least a general understanding that the parties
signing them know what they are agreeing to.
Once signed, the documents will be interpreted based upon their plain language – except that any ambiguity will be resolved in favour of the person who signed
the document.
While Victor clearly lived up to his name (at least in court), this
precedent-setting case will cause every church and other ministry organization
to think seriously, about how they carry on their ministries to young people
under age 19.
Questions need to be asked, and answered:
Is the risky activity still worth doing? Is the insurance coverage available
sufficient? Are the documents signed by participants and their parents adequate
to protect the church and charity, and staff and volunteers, who care for the
kids?
Bob Kuhn is an Abbotsford lawyer.
February 2010
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