Dawe v. Cypress Bowl Recreations Ltd PDF

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COMM 393

Dawe v. Cypress Bowl Recreations Ltd.

Case Briefs

[1993] B.C.J. No. 2892 British Columbia Supreme Court November 24, 1993 Facts  On January 6, 1991, the plaintiff was skiing at an area operated by the defendant when he fell, suffering injury o the plaintiff claims he was travelling slowly and the fall was caused by an unmarked precipice o the defendant claims the plaintiff was travelling at a high speed and fell on a gently inclined slope that was visible, expected, and previously observed  The plaintiff was 41 years of age, and had been skiing for 19 years prior to the accident. He is a graduate of SFU and has a teaching certificate, working as an elementary school teacher  The day pass purchased contained conditions relating to the defendant’s liability. The pass contained a “NOTICE TO SKIIERS AND LIFT PASSENGERS EXCLUSION OF LIABILITY”, which was written in red ink and capital letters. o the exclusion of liability and assumption of risk agreement was encircled by a red border  The plaintiff was aware there was such “limitation” wording on the ticket, but did not read or understand the specific conditions. Issues  Is the plaintiff bound by the conditions excluding liability as set forth in the day pass and notice sign?  Are the conditions expressing liability sufficiently broad to encompass the claim in negligence advanced by the plaintiff against the defendant? Reasons The plaintiff has admitted to the second issue, so only the first issue is up for consideration.  the defendant submits that the action should be dismissed as the defendant excluded its liability and duty of care to the plaintiff  Law: Occupiers Liability Act – Section 3 o states that “… an occupier is permitted by law to [modify] his duty of care to any person by express agreement, or by express stipulation or notice … the occupier shall take reasonable steps to bring that [modification] to the attention of that person”  the defendant submits that the plaintiff was aware there were limitations on the ticket, all the ticket wickets, as well as on the signs around the area Law: McQuary v. Big White Ski Resort Limited, [1993] B.C.J. No. 1956  states that “… if the person receiving the ticket did not see or know that there was any writing, he is not bound by the conditions” (no longer law in Canada)  states that “… if he knew there was writing and knew or believed that the writing contained conditions, then he is bound by the conditions”  states that “… if he knew that there was writing but did not know or believe that the writing contained conditions, he would be bound if the delivering of the ticket to him in such a manner that he could see there was writing upon it was reasonable notice that the writing contained conditions” Law: Hood v. Anchor Line (Henderson Bros. Ltd.) [1983] A.C. 837  states that “the finding of fact that the endorsement on the face of the ticket printed in red ink and referring to conditions endorsed on the reverse side constituted a reasonable attempt to bring to the passenger’s attention of the terms of the contract

COMM 393

Dawe v. Cypress Bowl Recreations Ltd.

Case Briefs

and that … his acceptance of the ticket without protest … precludes him from reprobating its terms Conclusion – The defendant has taken reasonable steps to draw out the terms of exclusion of liability; the action is dismissed with costs...