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