Kids waivers no protection

Canadian courts find waivers signed do not protect from lawsuit

The British Columbia Supreme court has ruled that the waiver you may sign as a parent will not stop a lawsuit. This does not mean that the parent can now sue for an injury to a child when a waiver has been signed. This ruling establishes that the child has a right to sue that cannot be taken away.

The case is Wong vs Lok and Honourable Mr. Justice Willcock has made a precedent-setting ruling on whether or not a parent can sign away a minor's right to tort.

Victor Wong was 12 years-old when he enrolled at the martial arts centre run by Lok in Richmond, B.C. Wong's mother signed a waiver for him and his two brothers which was one of the conditions of release and enrollment. Now Wong's mother says that she did not read the waiver over carefully and also did not fully understand what she was signing. She was told that her sons could not enroll if the waiver was not completed and so she did complied.

The case hinges on an incident that occurred when Wong was sparring and his partner threw him to the floor. The jarring fall fractured his arm and he has suffered a partial disability due to the injury. Wong is now 20 years-old and is suing the school, the school owner and his sparring partner.

The school, sparring partner and school owner asked that the claim be dismissed based on the evidence of the waiver that was signed by Wong's mother on his behalf.

Wong states now that he never authorized his mother to sign the waiver on his behalf. This has brought up the issue of whether or not a parent can effectively execute a pre-tort release on behalf of a minor.

The issue comes under Section 40 of the Infants Act. This governs the contracts that a parent might enter into on behalf of a child. When reviewed the court decided that the intention is to allow the parent or legal guardian the right to sign waivers only for things as consent to school trips or to health care.

Honourable Mr. Justice Willcock stated that the defendant's application was dismissed based on "the act doesnot permit a parent or guardian to bind an infant to an agreement waiving the infant's right to bring an action in damages in tort".

The insurance answer

What does this mean to you? If you have a business or volunteer group that provides services or activities to children then you need to carefully review your risk management. A minor cannot enter into a contract and a parent cannot sign away their right to sue. Waivers have now been deemed worthless to protect you in an injury claim.

How can I improve my protection from suit? An example would be providing a gym for neighbourhood children to use after school for indoor play. You need to consider items such as:

  • Hours of operation - weekdays from 3:30 p.m. to 5 p.m.
  • Security - a security guard needs to be assigned to the gym while it is operating.
  • Monitors or volunteers - need to be at the gym before, during and after the hours allotted. Duties would include preparing for the arrival of the children, supervising the play and then making sure the children are safely off the premises.
  • Hazards - all other gym equipment needs to be securely stowed away such as basketballs.
  • Access - the floor plan needs to be reviewed so that only the doors being used and secured are open during the time of play. The door that the children will use for access needs to be open just at 3:30 p.m. with volunteers or monitors there to greet the children and distribute the play equipment to be used that day.
  • Safety - the rules of the game being played need to be clearly explained and enforced. Proper footwear must be worn with no exceptions for bare feet, street shoes or stocking feet. The children are not allowed to bring food or drink into the building. It is important that there is documentation of attendance and any infractions are written down with resulting actions taken.
  • Background checks - it is important that all staff and volunteers who are working with children have a thorough background check.

Consider that at some point you may find yourself in court defending yourself. You will need to prove that you were not negligent. You will have to show that you did everything correctly and beyond what is reasonably expected to protect an adult as our duty to protect children is held to a very high standard.

Since you cannot totally avoid or control the possibility of a child being hurt while participating in an activity you should review your insurance policy carefully to be sure you have adequate coverage. A commercial general liability policy will exclude a "deliberate act". A deliberate injury to a child such as abuse or molestation will not be covered. You will have to purchase separate insurance for this area. Also consider having a limit of coverage that is beyond the minimum limit required by law or by the facility you are using.