Personal injury lawyer David Hay specializes in cyclist injuries.
By Justin Beddall
Jun 02 2005
Mountain biking is an inherently dangerous sport.
But does that make the District of North Vancouver liable if a mountain
biker is
seriously injured while riding dangerous stunts on their land?
David Hay, a personal injury lawyer who specializes in cyclist injuries,
says
changes to the Occupiers Liability Amendment Act in 1998 have limited the
duty
of care owed by landowners to the uninvited public in this case, mountain
bikers using trails built in the District.
Hay, who wrote a paper for last years North Shore World Mountain Bike
Conference entitled Occupiers Cyclists and One-Eyed Jacks: The Wild Game
of
Occupiers Liability, believes the Districts concerns over legal liability
(see:
Dismantling of the Watchumacalit) may be overblown, but adds this caveat.
Clearly the North Shore is a mecca for cyclists and its probably one of
the
better places in the world to pursue that activity, and its gaining a
national
and international reputation for some of the best cycling terrain
around, he
said. Theres a lot of rogue builders up there, theres a lot of people
taking
it upon themselves to create the most monstrous hazard they can build and
whenever that occurs within the legal jurisdiction of the District theyre
going
to get concerned.
From an injury perspective, from a danger perspective, from anything but
a
legal perspective, they ought to be concerned.
Hay, a veteran lawyer, noted that an orthopedic surgeon who sat on last
years
mountain bike conference panel said theres been a spike in the number of
serious injuries related to mountain biking. And thats something that
should
trouble District officials and not just from a legal point of view.
[The doctor] is seeing a real increase in the number of serious bodily
injuries
coming from the North Shore mountains, explained Hay, who noted that cases
are
underreported because typically theres no tort fees, or other words, no
one to
be sued. It never becomes a matter of public record, it seldom makes it to
the
press.
Hay noted that the creation of the Trans Canada Trail helped to create new
legislation in 1998 that ultimately deflects liability away from
municipalities
and other owners of rural properties and trails.
At least at this time, there seems to be sufficient legislative
protection
against liability and that really was the purpose of the amendments to the
Occupiers Liability Amendment Act, he explained.
That was a big part of the push and lobby. You know in order for there to
be a
Trans Canada Trail a lot of private and public land owners had to sign on
to
this ... they had to basically allow people to cross their land and, of
course,
their concern was liability. So the legislature addressed that and said if
people are pursuing a recreational activity on rural lands that are
properly
marked as such then theyre basically treated as trespassers, not in the
sense
that theyre run off the land with a shotgun but in the sense that if
something
happens to them they have the same remedy against the landowner as a
trespasser
does, which really has none.
Under the new amendment, cyclists who injure themselves while riding on
North
Shore trails will likely be treated as trespassers, meaning that any
person
entering a vacant or undeveloped rural premise or recreational trail for
recreational purposes is deemed to have willingly accepted the risks. In
this
case, the District duty is limited to not create danger with intent to do
harm
to the person or damage to the persons property; or act with reckless
disregard
to the safety of the person or the integrity of the persons property.
Still, that doesnt mean the District is immune from prosecution, Hay
said.
You can never completely have a sound nights sleep as someone who is a
District or public authority. The simple reason is if you get sued in our
free
and democratic society you may have a successful defence on the merits and
you
may get the case dismissed but it still costs you money, he explained. It
doesnt stop lawsuits from being brought. From just the perspective of
getting
sued unsuccessfully, the District might be concerned that its still going
to
have to defend a lot of these cases, which it could do, and likely have
dismissed but its still a cost. I dont think in my view that would be a
huge
concern. If someone came into my office and said they were on the North
Shore
trails and they had gone off a rogue jump and landed improperly and a
serious
injury resulted I would tell them that the legal battle is probably
steeper than
any trail theyve ever been on in terms of the prospects of success, he
said.
A recent case in Parksville, B.C, caused by a serious biking accident in
1999
was the first lawsuit that tested the 1998 amendments to liability.
The defendants, the municipality of Parksville, ultimately wanted the
claim
dismissed because their land fit the definition of rural. The judge
agreed, and
went on to comment that land on the outskirts of urban areas, like the
North
Shore mountains, fall under the term rural premises under the Occupiers
Liability Act.
That case does apply because the judge hearing the case did say the North
Shore
lands would be caught. Its the only case in B.C. that has considered the
application of the amendments to the act to the North Shore mountains, so
its
an important case from that perspective. The judge actually said that in
his
view the North Shore mountains would come within the excluded definition
under
the act. But thats not binding [because] when he said that it was not
integral
to his decision.
But, on the other hand, Hay said the judges comments could easily
influence
future decisions.
It all comes down to the occupiers liability amendment act, explained
Jeff
Schaafsma, risk manager for the Corporation of Delta and soon-to-be
president of
the B.C. Chapter of the Risk and Insurance Managers Society.
The Occupiers Liability Act has a reduced duty of care for recreational
areas;
if you have a nature area, the Occupiers Liability Act says youre not
liable
for anything unless you put something in there that creates a hazard. My
own
personal opinion is that there will be mountain biking whether or
not...theres
too much wilderness to stop it. So you can try and manage or it or wait
for
something to happen.
If there is a mountain bike trail on municipal land with unsanctioned
trails,
the municipality is not necessarily exempt.
Thats not necessarily true. If they know it is there and they do nothing
about
it then they may have some liability; I mean thats why a lot of
municipalities
and a lot of governments have started working with biking associations to
bring
in trail management programs.
I think thats sort of the wave of the future, to manage the recreation
rather
than allow it to go unchecked, he said.
===
I am working on creating wildlife habitat that is off-limits to
humans ("pure habitat"). Want to help? (I spent the previous 8
years fighting auto dependence and road construction.)
http://home.pacbell.net/mjvande
