IB 26:1

This article was first published in the Island Bushwhacker, Volume 26, Number 1.

Wavering on Liability
Sandy Briggs

Dear J.Q. Public,

In accord with the recent joint public policy initiative of the federal and provincial governments for the enhancement of general safety and the reduction of the financial burden on taxpayers we are required to inform you that you are, from this date, confined to your apartment unless accompanied by an Officer with Street Certification. This requirement arises because of the risks from uneven sidewalks, hazardous street crossings, high UV ratings, objects falling from trees, and unpredictable domestic animals and fellow citizens. Further, our agents have learned from your associates that you are susceptible to absentmindedness.
The new regulations therefore prohibit your using any fireplace or gas or electric appliance except while attended by an Appliance-Certified Officer. Arrangements for visits, at very modest rates, by such an Officer can be made when our Inspection Agent makes the next weekly call. We look forward to your full compliance.
The Liability Officer

Humorous? Frightening? Thought-provoking? Probably we will not reach that point, but we are going in that direction. If you have come up against a policy lately that you can’t quite understand –an odd policy, one that seems to go against common sense –then my best bet us that the ‘explanation’ for that policy can be summed up by the word ‘liability.’
Increasingly with each passing month it seems to me that a bunch of lawyers and MBA’s, or somebody, has turned society on its head. Everything and every action are evaluated only in terms of an assigned monetary value or cost. Other values, such as common sense, personal responsibility, ethics and morality, and the common good are devalued or even removed.
In many activities (driving, mountaineering, numerous sports) we have reached the truly perverse state where the fear of being held legally responsible for (and thus financially responsible for) an accident actually exceeds the fear of having an accident! We are less afraid of killing somebody than we are of the COSTS of killing somebody! In order to handle this new order of things we run to insurance companies, and in order to minimize the costs the insurance companies seek codification of things through waivers and (often) –mandatory qualifications.
Up to a certain point this all seems OK. The now not-so-new waiver form that I have to sign as a member of the Alpine Club of Canada has, however, gone over the line. (I had a chat years ago with the then Executive Director of the ACC and he said that parts of the waiver could be discussed again.) It contains the following: “We agree that we will be fully responsible for all costs and expenses which may be incurred in providing any special services to us… and we agree to be responsible for and to pay for all and any costs of rescues, special travel, medical attention or other special outlay for us personally…”
WOW!! I have two main objections to this. First, it asks the person to agree to do something he or she actually cannot do. Who among us could afford a day of helicopter time, never mind a search involving 50 people and a couple of Sea Kings and a Hercules aircraft? Second, suppose you have rescue insurance. What’s to stop your insurer from looking at the above waiver and saying ‘Sorry, we won’t pay. It says here you have agreed to pay personally?’ Moreover, the whole thing is very confusing about when costs are incurred and when not. What about rescues inside or outside of National or Provincial parks? Military, Coast Guard, Police or volunteers? Transport to a hospital or not? B.C. vs. Alberta vs. Yukon vs. U.S.A.?? On provincial medical plan or not? Adult or minor? Serious rescue, frivolous rescue, false alarm, an unnecessary or unwanted rescue? The muddle is amazing.
Further it seems that mountaineers, rock climbers, and backcountry users often are singled out by the media as costing the taxpayer vast sums in rescues. My hunch is that the taxpayer spends vastly more money rescuing recreational fishers who run out of gas than it does helping mountaineers in trouble.
On top of this, a recent British article (reprinted in the Alpine Club of Canada’s Gazette newsletter, vol. 12, no.1, May ’97 and later on the FMCBC web site) showed that, in terms of fatalities per participant, climbing and hill walking together are less dangerous than fishing and swimming, and less than a third as dangerous as horse riding.
The death knell for mountaineering clubs that rely on volunteer leaders will have been rung on the day that government or insurance companies decide that volunteer leaders need ‘on-paper’ qualifications. Excuse me, ‘do you have your night bush rappelling certificate’? ‘Do you have your ‘over knee-deep and carrying-a-pack-greater- than-25%-of-your-body-weight-stream wading certificate? Sorry, is that the winter or summer rating?’
But it’s bigger than that. Liability affects where you can go. Some logging companies and other landowners have now gated roads traditionally accessible because they are afraid somebody will get hurt on their land and sue. If you are this person then you are probably an idiot. First, you have not taken responsibility for your own actions. Second, you have limited where I can go to take responsibility for mine. Thankfully the B.C. provincial government did pass into law the Law Reform Commission’s recommendations for changes to the Occupiers Liability Act.
As for the other liability problem, let me finish (at last) with a question from then British Mountaineering Council Vice-President Doug Scott (in a 1995 statement formerly available on the FMCBC web site): “Misguided and alarmist politicians … make the case for climbers taking out compulsory insurance, with all its implications for personal certifications and climbers being told what equipment they should use and how they should climb. Significantly, the rescue services themselves have never sought to impose restrictions on the climbing community.”
Well, bye now. I have to go sign a waiver and meet my Cycling Officer to see if I can ride my bike home.