BC Courts Weigh in on Tether and Other Backcountry Liability Issues
A precedent-setting decision was made in BC courts recently in the case of an incident involving mountain sledders. In it, an Alberta snowmobiler was found to be 100% liable for damages to a fellow rider after failing to wear his snowmobile tether cord (Passerin vs Webb 2018).
The Incident
A group of riders headed out for a day of riding in the Renshaw, BC area when two of the riders stopped to get a sled unstuck. A third rider, travelling some distance away, hit a snowdrift and lost control of his machine, which travelled 1500m downhill before striking a member of the stuck party. The struck rider suffered a number of injuries including a traumatic brain injury and multiple fractures. The civil claim also requested compensation for loss of enjoyment of life and future earning capacity.
The judgement against the snowmobile owner found a total of three safety system failures contributing to the incident (operator did not hit kill switch and the throttle did not return to a neutral position when pressure was let off). However, it was the failure of the operator to wear his safety tether in particular, that led the judge to find him solely responsible for the incident.
The kill switch is one of three safety mechanisms which were not activated in the incident.
BC Courts Weigh in on Tether and Other Backcountry Liability Issues
We all have a tether near-miss incident story. Typically, damages are singularly incurred by the rider themselves. We begrudgingly dust ourselves off, heal up, and get our sleds repaired without a second thought. In fact, most of us accept this risk as part of the sport. As a precedent setting case, however, this judgement against the sled owner establishes a ‘common rule’ for future lawsuits to be based upon; that a snowmobiler does, in fact, have a duty of care to other recreational users sharing the area. Will this responsibility carry over to other aspects of sledding? Will riders soon need to prove they have an avalanche safety training course before heading into the backcountry?
A second interesting case was also brought before the courts last month, regarding a statement of claim against the Association of Canadian Mountain Guides, a ski lodge accommodator and three staff with reference to a 2016 avalanche that buried 5 people ski touring near Golden, BC. The professional guiding world is watching this case carefully as the claimant, who signed a waiver release, alleges the defendants ignored avalanche predictions, failed to communicate these predictions to the experienced recreational group, and failed to also exercise reasonable care for others.
Inherent Risk and Responsibility
In both professional and recreationalist cases noted above, the boundary between inherent assumed risks and negligence is examined. As backcountry enthusiasts choosing to enter adverse and often hostile environments, we are presented with risks every second of the day. Our decisions and actions ultimately affect not just ourselves, but our riding partners, others enjoying the surrounding terrain and those waiting at home. So how do we reconcile the difference? Is there still truly freedom in the mountains?
– Nicole
