IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

HBC No. 05 of 2010

BETWEEN:

GREGORY CLARK of 6624 Kelsey Point Cr. Alexandria, Virginia 
22315 USA, Pilot.
PLAINTIFF

AND:

ZIP FIJI a firm registered under the Registration of Business Names 
Act having its Office at Lot 1, DP 5421 Wainadoi.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. D. Singh for the Plaintiff 
Mr. O' Driscol for the Defendant 

Date of Hearing: 28th May, 2012
Date of the Decision: 10th July, 2012

DECISION

A. INTRODUCTION

1. The Plaintiff has filed the writ of summons against the Defendant, for alleged damages to personal injury to him while he was engaged in recreational activity. The adventure the Plaintiff engaged is striping a person into a harness which is then sent down a cable line called 'zip line'. The participants are sent from higher point at canopy of the trees to a lower point of the canopy in the forest. The Plaintiff who is a pilot by profession signed a waiver and release document, before engaging in this recreational activity. The Defendant is seeking strike out of the action in terms of Order 18 rule 18 read with Order 33 rule 7 based on the waiver and release. The main issue is the applicability of the waiver to the alleged incident where the Plaintiff is claiming negligence on the part of the Defendant's employees which is denied by the Defendant. I need not deal with the disputed facts, but if the waiver signed by the Plaintiff covers the negligence of the Defendant and or its employees, the action should be struck off as that would lead to no cause of action against the Defendant upon the interpretation of the waiver and release signed by the Plaintiff. In the interpretation of the waiver clause I applied the time tested and often sited case of Canada Steamship Lines LD Vs King [1952] A.C 192 at 208 where three tests are applied. Fist if the word 'negligence' is expressly mentioned and excluded that, its full effect is allowed. If there is no express reference to negligence, the court is still required to apply the second test and consider whether the words used are wide enough, in their ordinary meaning, to cover negligence and if so, the third test is applied. If the words used are wide enough for the above purpose the court must then consider whether there are grounds other tan negligence that can be covered by the clause and this any other ground should not be a fanciful and remote ground which the parties did not suppose to cover. If the clause qualifies only the second and third tests, the exemption from the negligence is allowed. The clause 4 of the Defendant's waiver and release is analysed in the light of the other clauses in the said document and also according to the law, and principles applied for such clauses.

B. FACTS 

2. The Plaintiff who lives in USA and a Pilot by profession, engaged in a recreational activity called 'Zip Fiji' on or around 26th July, 2008. The said adventure involves strapping a person into a harness and trolleying down a cable line in the forest. Such rides were done by wearing a harness which is attached to a wheel on a cable (zip line) in the forest and the line was connected to the canopies of two trees. The participants were travelling in the zip line at a height over 80 feet and up to a speed of 60 Km per hour through the rain forest at Wainadol.

3. The Plaintiff is alleging that he was pushed by an employee (guide) and also yanked the cable vigorously resulting a collision to a tree and injury to the hip and wrist. The Defendant is vehemently denying these allegations and state that Plaintiff was not properly following instructions that resulted the collision with a tree, and denies any serious injury as the Plaintiff continued with the adventure even after the alleged accident in the same manner as before the incident, indicating no severe injury due to collision.

4. The Defendant not only denies these allegations but state that the alleged collision with a tree happened due to the actions of the Plaintiff who did not adhered to the proper instructions and jumped up and down on the zip line with the harness that resulted the collusion with a tree. The issue of negligence is disputed and cannot be decided at this moment, though I stated the said facts relating to the said negligence only for completion, those are not material for this decision as the interpretation of waiver and release is strictly legal interpretation without any disputed facts being considered.

5. Before the adventure on the zip line all the participants were required to sign a waiver and the Plaintiff admittedly signed it. The issue before me depends purely on the construction of this waiver and strictly legal interpretation of that without considering the factual issues. The Plaintiff has voluntarily signed the waiver and the waiver document is a separate sheet of document which contains as follows:-

"RELEASE AND WAIVER

CANOPY ADVERTURES (FIJI) LTD
P. O. BOX 457, PACIIFC HARBOUR, FIJI ISALANDS.

NOTICE: THIS RELEASE AND WAIVER AFFECTS YOUR LEGAL RIGHTS.
PLEASE READ IT VERY CAREFULLT AND UDERDTAND IT BEFORE YOU SIGN.

In consideration f the services CANOPY ADVENTURES (FIJI) LTD, doing business as ZIP (FIJI) (the "Company") has agreed to provide to me, I hereby promise and agree on behalf of myself (or, if I am signing this document on behalf of a person who is under the age of eighteen, on their behalf as his/her Legal Guardian), and my heirs, assigns, personal representatives and estate(or those the mirror if I am his/her Legal Guardian) as follows:

1. I recognize and acknowledge that there are risks inherent in any activity. The same factors that contribute to enjoying an activity may also cause property damages, accidental injury, illness or, in extreme case, serious injury or death. Having acknowledged that general risks exist, I hereby specifically accept and assume the following specific risks that may arise in participating in the ZIP Line Tour (the "Activity"): (a) my participation in the Activity may result in accidents, injury, serious injury and/or death; (b) such injuries or accidents may occur in remote places where there are no immediately available medical facilities; (c) during the Activity I may experience fatigue, extreme heat, chill and/or dizziness which may diminish may reaction time and that of others and may therefore increase the risk of accident; (d) changing weather, fog, rain, sleet and/or other condition, slippery trails and/or roads, falling objects manmade and/or natural, and erosive cliff edges through or near which I will be walking and/or traveling, my own inability to properly participate in the Activity or to follow rules and directions concerning the Activity and unforeseeable events may all contribute to the chances of accidental and/or injury.

2. I hereby confirm that I am at least eighteen years of age or my legal guardian will be participating with me in the Activity, that I am physically and mentally capable of participating in the Activity, that I will comply with all of the instructions and safety requirements for participating in the Activity, that I am capable of using the equipment provides to me by the Company, and that I am participating in the Activity voluntarily and of my own free will. I acknowledge that I will be required to listen to and follow rules and guidelines for participating in the activity, including but not limited to the following:

•	I will abide by all instructions provided to me by the Company, and the Company's designated tour guides.

•	I will not make any adjustments to my equipment, and I agree any adjustments will be made only by, or with, a company tour guide.

•	I will not intentionally flip myself over or invert myself on the zip line.

•	I will hold on with at least one hand at all times while zipping.

3. I understand and agree that the Company reserves the right, in its sole discretion, to refuse to permit me to participate in the Activity, and that the Company may terminate my participation in the Activity if it believes me to be capable of following the instructions or meeting the safety requirements or the rigors of participating in the Activity. I specifically agree to release the Company from any liability if I am prevented from participating in the Activity for any reason whatsoever.

4. I hereby agree to assure full responsibility for myself and anyone else over whom I am legal guardian, for bodily injury, death or damages incurred as a result of my participation in the Activity. I further agree to defend, indemnify and hold CANOPY ADVENTURES (FIJI) LTD, and their agents, employees, officers, and owners harmless from any liability WHATSOEVER for any bodily injury, death, loss or personal property or expenses resulting from my participation in the Activity. (emphasis is mine)

5. I hereby agree and confirm that any claim, action or dispute arising under this agreement or as result of my participation in the Activity shall be settled by binding arbitration in Suva, Fiji Island, in accordance with the rules of Fijian Arbitration Association then existing and judgment on the arbitration award may be entered in any court having jurisdiction over the subject matter of the controversy. This agreement to arbitrate does not waive or modify the above acceptance of risk and release of claims.

6. I an not relying on any oral, written or visual representations or statements made by Canopy Adventures (Fiji) Ltd, including those made in its brochures or other promotional material, to induce me to participate in this activity. I grant permission to Canopy Adventures (Fiji) Ltd, and other trip participants to make movies, videos, and photographs and to use them for promotional and commercial purposes without recourse or compensation to me."

6. The summons filed by the Defendant in terms of Order 18 rule 18 read with Order 33 rule 7 seeks to strike out the action on following grounds

a.	That it discloses no reasonable cause of action.
b.	It is frivolous and vexatious.
c.	It is an abuse of the process.

7. The Defendant is also relying on Order 33 rule 7 for this application which states 

'If it appears to the Court that the decision of any question or issue arising in a course or matter and tried separately from the cause or matter substantially disposes of the cause or matter or renders the trial to the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment then as may be just.'

C. ANALYSIS

8. At the outset, the parties agreed that this summons should be confined to the interpretation of the waiver clause and I will summarise the issue as follows

Does the waiver signed by the Plaintiff absolve the Defendant's and or its servants' negligence?

9. If the answer to the above question is affirmative the summons for strike out of this action should be granted and if the answer is negative the action should proceed to trial for the proof of the alleged negligence.

10. The interpretation of the waiver signed by the Plaintiff is strictly legal issue that does not involve any factual issues. Parties admit the waiver document and signing it without any duress or coercion. The Plaintiff who is a pilot in USA should have understood the contents of the document without any difficulty and the said waiver was signed before he participated in the activity, these facts are not disputed by the parties.

The counsel for the Plaintiff submitted to me a recent decision of Deanna Loychuk and Danielle Westgeest Vs Cougar Mountain Adventure Ltd., Whistle Skyline Eco – Adventure Ltd., Jone Doe 1, John Doe 2, and Jane Doe (citation Loychuk v Cougar Mountain Adventure Ltd., 2011 BCSC 193) in the Supreme Court of British Columbia decided on 17th February, 2011and also the Court of Appeal of British Columbia decision on the same matter decided on 15th March, 2012. These judgments are relating to similar activity, but the issues raised and the circumstances are different from the issue before me. Nevertheless, they are useful in this determination.

Loychuk v Cougar Mountain Adventure Ltd 2011 BCSC 193 Justice Goepel at paragraph 24-27 stated 

'[24] The defendants submit the Release provides a complete defence to the action. They rely on several decisions where similar releases were upheld including Karroll v Silver Star Mountain Resort Ltd (1988), 33 BCLR. (2d)160(S.C)[Karroll], Ochoa v Canadian Mountain Holidays Inc., [1996] BCJ. No. 2026 (SC) [Ochoa], Mayer v. Big White Ski Resort Ltd. (1998), 112 B.C.A.C. 288 [Mayer], Delaney v. Cascade River Holidays Ltd. (1983), 44 BCLR. 24 (CA.) [Delaney], and Dyck v. Manitoba Snowmobile Assn. [1985] 1 SCR 589 [Dyck].

[25] The Plaintiffs acknowledge signing of the Release. They submit, however, that the Release is ineffective for the following reasons:

i.	the release is unenforceable because a reasonable person should and would have known that the Plaintiffs were not consenting to the terms at issue and the defendant failed to take steps to appraise the Plaintiffs of the terms, constituting misrepresentation by omission;

ii.	the Release is unconscionable;

iii.	as a result of deceptive and/or unconscionable acts committed by the defendant, the Release is invalidated by s. 3 of the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2 (the "BPCPA");

iv.	the Release is invalid as having been obtained without any, or only past, consideration.

[26] The Plaintiffs submit that the cases relied on by the defendant are distinguishable. They involve releases in regards to activities in which the participant has some measure of control. They contrast such activities in which the participant has some measure of control. They contrast such activities with ziplining in which the participant hands over her personal safety to the zipline operator and its employees and has no control over the nature of the risks.

Discussion

A. Enforceability of the Release

[27] In Karoll, McLachinC.J.S.C (as she then was) discussed when a plaintiff will be bound by the terms of a release. In the course of her reason, she reviewed and reconciled two distinct lines of authorities. The first supports the principle of general contract law that where a party signs a document which he or she knows affects his or her legal rights, the party is bound by the document in the absence of fraud or misrepresentation, even though the party may not have read or understood the document: L'Estange v F.Graucob Ltd., [1934] 2 KB 394 at 403(CA) [L'Estrange]. The second requires a party seeking to rely on and exclusion of liability which the signing party has not read, to show that a reasonable attempt has been made to bring the signing party's attention to the terms contained on the form if they wish to rely on the release: Union Steamships Ltd v Barnes [1956] SCR 842.

[28] McLachin C.J.S.C reconciled the decisions at 166. She concluded that an obligation on the party tendering the document or signature to take reasonable steps to apprise the party signing of onerous terms only arises in circumstances that a reasonable person should have known that the a party signing was not consenting to the terms.

[29]The Plaintiffs signed the Release knowing that it was legal document affecting their rights. Under the principles set forth in L'Estrang they are bound by its terms unless they can bring themselves within one of the exceptions. This is not a case of non est factum. Nor was here active misrepresentation. Unless it is unconscionable or invalid for other reasons they are bond by the Release……'

11. The Plaintiff who is a pilot by profession do not state any misrepresentation and the Plaintiff's counsel is not relying on the issue of the waiver being unconscionable or invalid for other reasons. In the Loychuk v Cougar Mountain Adventure Ltd 2011 BCSC 193 the Supreme Court of British Colombia has held such a waiver, releasing the liability that extended even to the negligence of the Defendant is not unconscionable in the type of activity which are inherently dangerous and risky. The said judgment also rejected the contention of the distinguishing the recreational activity as a distinctive recreation where the participant has no control as opposed to other adventures like rafting where the participant also controls the recreation to a certain extent. In zip line there is relatively no control in the hands of the participants. The court rejected this argument in this case and upheld the same in the appeal, but the counsel for the Plaintiff relied on this test again on the same distinction in this case as well. I only has to cite the authorities that Plaintiff's counsel submitted to reject such a distinction based on the degree of controls of the activity while engaging in the recreational adventure.

12. It was stated at paragraph 36 of the judgment of the Supreme Court of British Columbia determined the issue of unconscionability and stated as follows

'[36] This is not the first time that it has been suggested that a release arising in the context of hazardous activities is unconscionable. However, as noted by Koensberg H in Ochoa, there is a well established line of authority in Canada that such exclusions of liability are not unconscionable. In Ochoa, she rejected an argument that he release was unconscionable. Similarly in Dyck, the Supreme Court of Canada rejected an argument that the release in question was unconscionable.'

13. The supreme court of British Columbia also hinted the judicial power of the court and separation of powers and public policy and stated

'[39] Whether Release should be limited in the manner recommended by the Commission is a question of public policy. To date the legislature has not chosen to implement the Commission's recommendations. Absent legislative intervention, I am bound by the prior authorities. I find Release is not unconscionable.'

14. I have not been referred to any such special legislation regarding the terms of the contract similar to Unfair Terms of Contract Act, 1977 of UK, in this hearing. In the absence of such legislation I am also bound by prior authorities in Fiji and other common law jurisdictions where the persuasive effect of such judgments can be considered, and applied.

15. In the said case it was contended that since there was an earlier study by law commission and certain recommendations are being made to the legislature whether any clause that is in contravention of the said recommendation is unconscionable, but the court clearly held that change of the law is not their prerogative and I completely agree with that.

16. In the appeal from that decision to the Court of Appeal of British Columbia in Loychuk v Cougar Mountain Adventures Ltd, the decision of the Supreme Court was upheld. The Said Court of Appeal decision was delivered on 15th March, 2012 and I have been provided with a copy of the said judgment of Justice Frankel concurred by Justice Newbury and Justice Bennett, by the Plaintiff's counsel. 

17. Justice Frankel dealt with the issue of unconscionability following manner

'[29] The language used to express the test for unconscionability has varied over the years. It was put this way by Mr. Justice Davey, as he then was in Morrison v Coast Finance Ltd (1965),55 DLR (2d) 710 at 713 (BCCA):

[A]plea that bargain is unconscionable invokes relief against an unfair advantage gained by an unconscientiously use of power by a stronger party against a weaker. On such a claim the material ingredients are proof of inequality in the position of the parties arisen out of the ignorance, need or distress of the weaker, which left him in the power of the stronger, and proof of substantial unfairness of the bargain obtained by the stronger. On proof of those circumstances, it creates a presumption of fraud which the stronger must repel by proving that the bargain was fair, just and reasonable: [citation omitted].

[30] That test was recently discussed in McNeil v Vandenberg, 2010 BCCA 583, and Roy v. 1216393 Ontario Inc., 2011 BCCA 500. In McNeill, Madam Justice Garson stated:

[15] In order to set aside a bargain for unconscionability, a party must establish:

(a). inequality in the position of the parties arising from the ignorance, need or distress of the weaker, which left him in the power or the stronger; and 

(b). proof of substantial unfairness in the bargain.

This test was articulated in Harry v Kreutziger (1978), 9 BCLR 166 (BCCA) at 173 and reiterated in Klassen v Klassen, 2001 BCCA 445.

[31] In Roy, Mr. Justice Tysoe (at para29), quoted the following from the judgment of Madam justice McLachlin, as she then was in Principal Investments Ltd v Thiele Estate (1987), 12 BCLR (2d) 258 at 263 (CA):

Two elements must be established before a contract can be set side on the grounds of unconscionability. The first is poof of inequality in the position of the parties arising out of some factor such as ignorance, need or distress of the weaker, which leaves him or her in the power of the stronger. The second element is proof of these circumstances creates a presumption of fraud which the stronger must repel by proving the bargain was fair, just and reasonable: Morrsion v Coast Fin. Ltd (1965), 54 WWR 257, 55 DLR (2d) 710 (BCCA); Harry v Kreutziger (1978), 9 BCLR 166, 95 DLR (3d) 231(CA)

Mr. Justice Tysoe went on to state (at para.30) that in Tercon, Binnie J was "not intending to signal departure from the usual test for unconscionability."

[32] The appellants acknowledge that there is a well-established line of authority in Canada holding that releases relating to recreational sport activities are not uncontainable. However they submit those authorities are inapplicable because they do not relate to activities in which the operator has total control of the risk. I disagree.

[33] To begin, the authorities are clear that there is no power-imbalance where a person wishes to engage in an inherently risky recreational activity that is controlled or operated by another. Equally important, they are also clear that it is not unfair for the operator to require a release or waiver as a condition of participating.

………..

[40] The principle evinced by the foregoing authorities is that it is not unconscionable for the operator of a recreational-sports facility to require a person who wishes to engage in activities to sign a release that bars all claims for negligence against the operator and it employees. If a person does not want to participate on that basis, then he she is free not to engage in the activity."

18. The Plaintiff who is a pilot by profession lives in USA and he has voluntarily participated the adventure activity which is inherently dangerous after reading the waiver and release which has waived his legal rights stated in the said document. If he did not want to participate on the basis of waiver and release that was submitted to him he could have refrained from the activity. The waiver document does not specifically mentioned the negligence of the Defendant as in the case discussed above where the word negligence was mentioned in the waiver clause. The main contention of the counsel for the Plaintiff is that since there is no express mention of word 'negligence' the waiver should not be a complete defence for the claim of the Plaintiff. This is not the correct position of the law.

19. The contention of the Plaintiff is not correct in the application of the relevant case law. The express mention of the word 'negligence' is not a sine qua non in a waiver in order to exclude the negligent act. This issue has been amply discussed in numerous authorities in UK and almost all the cases refer to the principle applied in Canada Steamship Lines LD Vs King[1952] AC 192 at 208 Per Lord Morton.

20. The test is laid down succinctly as follows by Lord Morton 

'Their Lordships think that the duty of a court in approaching the consideration of such clauses may be summarized as follows

(1). If the clause contains language which expressly exempts the person in whose favour it is made (hereafter called "the proferens") from the consequence of the negligence of his own servants, effect must be given to that provision. Any doubts which existed whether this was the law in the Province of Quebec were removed by the decision of the Supreme Court of Canada in The Glengoil Steamship Company v Pilkington

(2) If there is no express reference to negligence, the court must consider whether the words used are wide enough, in their ordinary meaning, to cover negligence on the part of the servants of the proferens. If a doubt arises at this point, it must be resolved against the proferens in accordance with article 1019 of the Civil Code of Lower Canada: "In cases of doubt, the contact is interpreted against him who has stipulated and in favour of him who has contracted the obligation."

(3). If the words used are wide enough for the above purpose the court must then consider whether "the head of damage may be based on some ground other than that of negligence" to quote again Lord Greene in the Alderslade case. The "other ground" must not be so fanciful or remote that the proferens cannot be supposed to have desired protection against it; but subject to this qualification, which is no doubt to be implied from Lord Greene's words, the existence of a possible head of damage other than that of negligence is fatal to the proferens even if the words used are prima facie wide enough to cover negligence on the part of his servants.

21. In the High Court of Fiji at Lautoka Civil Action No 133 of 1999 Ian Reid Vs Bay Cruises (Fiji) Ltd Justice Finnigan referred to the Canada Steamship Lines LD Vs King [1952] AC 192 but did not apply the above test to arrive at a ruling relating to a waiver clause which expressly contained the word 'negligence' and the application of the ratio was not necessitated depending on the facts of the said case.

22. The test applied in Canada Steamship Lines LD Vs King [1952] AC 192 was applied in the judgment of Lord Justice Donaldson in the case of The "Raphael" [1982] Lloyd's Law Reports p42 at p 44.

23. In "Super Servant Two" [1989] EWCA Civ 6 (12 October 1989), [1990] Lloyds Rep 1. Lord Justice Bingham referring to a clause which is not an exclusion clause stated

'The present clause is not, as the judge accepted, and exception clause. It is not therefore directly covered by Canada Steamship. The clause is, however, one which confers on one party only a right exercisable in a very wide range of circumstances to nullify the contractual bargain made between the parties at no cost to itself and regardless of the loss which the other party may sustain. To such clause the broad approach indicated by Canada Steamship is in my judgment appropriate.'

24. The application of Lord Morten's three prone tests has not withered the test of time for over a half a century and no alternative has been formulated by the courts, in the interpretation of waiver clauses and it has even been extended similar clauses which are not strictly exception or indemnity clauses.

25. In the case of Smith and others v South Wales Swithgear Ltd [1978] 1 All ER 18 the decision of Viscount Dilhorne at page 21 stated 

'The main question for determination in this appeal is as to the construction to be placed on cl23 (b) of the general conditions. The view of their Lordships as expressed by Lordships as expressed by Lord Morton of Henryton in Canada Steamship Lines LD Vs King [1952] AC 192 as to the approach to be made in construing 'such clauses' was summarized by the formulation of what has been referred to as three tests. In that case there was both an exemption clause and indemnity clause. Although the tests themselves referred only to clauses exempting from liability, the reference by Lord Morton of Henryton in the preceding sentence to 'such clauses' shows that the tests were meant to apply both to exemption and indemnity clauses.

In the same case at p 22 

"In Hollier v Rambler motors (AMC) Ltd [1972] 1 All ER 399 at 405 Salmond LJ, as he then was made some observations on the passage in Lord Greene MR's judgment in Alderslade v Hendon Laundry Ltd [1945] 1 All ER 244 at 245, which was cited with approval by Lord Morton of Henryton in the Canada Steamship Lines LD Vs King [1952] AC 192. He printed out that 'in the end you are driven back to construing the clause in question to see what it means. My noble and learned friend Lord Salmon's observations met with the approval of Lord Denning MR in Gillespie Brothers & Co Ltd v Roy Bowles Transport Ltd [1973] 1 All ER 193 t 199 and while the tests formulated by Lord Morton of Henryton are a useful aid to construing such clauses, they are not be interpreted as if they were provisions in a statue. At the end of the day one must construe the clause in the light, inter alia, of other provisions of the contract.'

26. As I have decided earlier in this decision there is no distinction as to the degree of control while engaging in recreational activity and the exclusion from the negligence. Where a person wishes to engage in an inherently risky recreational activity that is controlled or operated by another, its inherent risk is not affected as the participants knew what they are engaging in and if there was any doubts as to their safety they could have refrained from the activity which does not allow any control. If the self-control was paramount, the plaintiff should not have selected an activity that did not provided him with sufficient leeway or control of the activity. In the circumstances, the participants are fully aware of what they are engaging in, and how much control that they have regarding their safety and that it is not unfair for the operator to require a release or waiver as a condition of participating.

27. The document the Plaintiff signed is a separate one page document which I have quoted in full with the heading in bold in upper class letters in font that is larger than the rest stating 'NOTICE: THIS RELEASE AND WAIVER AFFECTS YOUR LEGAL RIGHTS.PLEASE READ IT VERY CAREFULLT AND UDERDTAND IT BEFORE YOU SIGN.' So, the Plaintiff knew in advance that what he is consenting is waiver of his legal rights, and being a well-educated person engaged in the profession of pilot in USA, there should not be any doubt as to the nature of the document that he signed as it clearly indicated 'release and waiver' of his legal rights. The clause 4 specifically deals with the bodily injury and this is a clause where the tests formulated by Lord Morton in Canada Steamship Lines LD Vs King [1952] AC 192 should be applied.

28. In the clause 4 of the said waiver and release do not contain the word 'negligence' but it state 

"I further agree to defend, indemnify and hold CANOPY ADVENTURES (FIJI) LTD, and their agents, employees, officers, and owners harmless from any liability WHATSOEVER for any bodily injury, death, loss or personal property or expenses resulting from my participation in the Activity"

29. In application of the of the test of Lord Morton in Canada Steamship Lines LD Vs King [1952] AC 192 the said clause does not indicate the word negligence and the first criterion laid by the Lord Morton fails.

30. The contention of the Plaintiff is when the word 'negligence' is not expressly stated negligence is not excluded in the waiver, which is a wrong contention according to the accepted interpretation of exemption and indemnity clauses and similar clauses, in the absence of any legislative provision governing such clauses as in Unfair Terms of Contract Act 1977 in UK and also Unfair Terms of Contract Act, in Sri Lanka and similar legislations in USA. But I have not been provided with such a legislation in Fiji, which restrict the terms of contract.

31. When one fails the first criterion then the second and third criteria has to be tested as stated by Lord Morton as follows

'(2) If there is no express reference to negligence, the court must consider whether the words used are wide enough, in their ordinary meaning, to cover negligence on the part of the servants of the proferens. If a doubt arises at this point, it must be resolved against the proferens…..'

32. In application of the second test above, to clause 4 of the waiver and release which stated "I further agree to defend, indemnify and hold CANOPY ADVENTURES (FIJI) LTD, and their agents, employees, officers, and owners harmless from any liability WHATSOEVER for any bodily injury, death, loss or personal property or expenses resulting from my participation in the Activity" the words are wide enough in the ordinary meaning to cover negligence on the part of the servants of the Defendants. There is no doubt as to what is covered in the said clause. The bodily injury is expressly stated and this cannot be interpreted to create any doubt.

33. The clause 4 stated in the above paragraph has waived and released the Defendant and its servants from any liability whatsoever for bodily injury, death, loss personal property or expense resulting from the participation in the adventure activity. The express reference to bodily injury, and death indicate that waiver is for negligence of the Defendants and or its servants. The words are wide enough to cover the negligence, but the test does not stop there as there is an additional requirement if the second test is answered affirmative.

34. The third test is as stated by Lord Morton is as follows

'(3). If the words used are wide enough for the above purpose the court must then consider whether "the head of damage may be based on some ground other than that of negligence" to quote again Lord Greene in the Alderslade case. The "other ground "must not be so fanciful or remote that the proferens cannot be supposed to have desired protection against it; but subject to this qualification, which is no doubt to be implied from Lord Greene's words, the existence of a possible head of damage other than that of negligence is fatal to the proferens even if the words used are prima facie wide enough to cover negligence on the part of his servants.

35. In the application of the above test it is evident that the liability to bodily injury and death may occur due to the negligence of the Defendant and or its servants and this is the only pragmatic conclusion that can be derived from the clause 4 of the waiver and release in the light of the other provisions in the said waiver and release. There is no existence of possible head of damage other than that of negligence, that is referred to me by the Plaintiff's counsel or that can reasonably be think of.

36. When I examine the waiver and release fully, it is evident that the clause 4 is only directed to the negligence and liability arising from that is what was the Defendant expected and one cannot possibly rule out that fact and there is no other ground that can be covered under the said clause 4. So, if one were to find that the said clause does not cover the negligence of the Defendant, there is no possible and forceeable ground or liability and the clause 4 becomes lack of subject matter for the parties to agree. This would create a position where the clause 4 become meaningless and lack of subject matter for the parties to contract. The said cause can only be referred to negligence of the Defendant and its servants.

37. The inclusion of the word servants reinforces the negligence as they can only be held liable for negligence and no other liability can be conferred to them. So, any liability as to the negligence of the Defendant's servants or employees as alleged in the statement of defence is expressly excluded in the waiver and release signed by the Plaintiff.

38. The Plaintiff's counsel was unable to refer to me any other possible waiver or release that can be included under the clause 4 of the 'waiver and release' executed between the Plaintiff and the Defendant. In the light of the other provisions in the said document clause 4 of the waiver and release can only be the liability on negligence of the Defendant including the servants of the Defendant and that the parties intended that waiver as there is none left considering the other clauses in the waiver and release. It should be noted that this The "other ground" must not be so fanciful or remote that the Defendants cannot be supposed to have desired protection against it. Neither the Plaintiff referred even to such a fanciful or remote 'other ground' which is covered in clause 4 of the waiver and release or I can think of such a situation other than negligence, of the servants of Defendants. 

39. The test applied by Lord Morton was applied to exclusion clauses in Cert Plc v George Hammand Plc [1999] 2 All E R (comm) 976, Thompson v Lohon (Plant Hire) Ltd [1987] 1 WLR 649 and held that the expressly inclusion of word 'negligence' is not a sine qua non to exclude the defendant from the liability.

40. In Co-operative Retail Services Ltd V Taylor Young Partnership Ltd [2002] 1 WLR 1419 at paragraphs 40 referred to Dillon L J in Surry Health Borough Council v Lovell Construction Ltd [1990] 48 BLR 108 at 121:

"The effect of the contractual agreement must always be a matter of construction. Parties are free to contract as they like. It may be the true construction that a provision for insurance is to be taken as satisfying or curtailing a contractual obligation, or it may be the true construction that a contractual obligation is to be backed by insurance with the result that the contractual obligation stands or is enforceable even if for some reason the insurance fails or proved inadequate."

41. The parties are free to make contracts which do not offend the law of the country the risk each party is willing to suffer in an accident can be determined by contractual obligation. It dos not make any commercial scene to vary such terms when it is evident what they intended at the time of execution. This is more applicable to inherently dangerous adventures similar to the one where the Plaintiff engaged in this action. The risk and the danger itself is the drive force that prompts the participants to engage in such dangerous recreational activities. In the absence of any legislative intervention the effect of waiver and release should be confined to its full effect as parties intended and agreed before the activity.

D. CONCLUSION

42. The clause 4 in the waiver and release signed by the Plaintiff voluntarily before the participation in the recreational adventure activity is a complete waiver of the legal right of the Plaintiff to sue the Defendant and or its servants for negligence. The waiver and release document as its heading indicated it is a waiver and release of the legal rights of the Plaintiff and clause 4 is a complete defence to the alleged negligence of the employees of the Defendant. The principles of construction of such clauses as enumerated by Lord Morton in Canada Steamship Lines LD Vs King [1952] A.C 192, which had been adopted is applicable to the present scenario. The alleged negligence by the employees of the Defendant is vehemently denied, but without that issue being resolved through evidence, upon the proper construction of the clause 4 in the waiver and release document the alleged claim of the Plaintiff should be struck off as the said waiver and release is a complete defence to the claim of the Plaintiff. I grant a cost of $1,000 to the Defendant as the cost of this application assessed summarily.

E. FINAL ORDERS

a.	The Plaintiff's action and the claim is struck off.

b.	The Defendant is granted a cost of $1,000 as the cost of this application assessed summarily.

Dated at Suva this 10th day of July, 2012.

Master Deepthi Amaratunga
High Court, Suva