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Personal Injury

Helmets a must for risky winter activities

A family visit to a ski resort or tobogganing hill may be a fun way to spend March break, but parents should be aware of the risk of traumatic brain injury (TBI) that can arise from these winter activities, Toronto critical injury lawyer Alison Burrison tells

In Ontario, bike helmets are mandatory for all riders under the age of 18 but when it comes to activities such as skiing, snowboarding, tubing and tobogganing, they are only required when in specialty terrain parks or by students on a school-supervised trip, she says.

“Children are going down ski or tobogganing hills at a much faster speed than they would be riding a bike on the sidewalk or street,” says Burrison, a partner with McLeish Orlando LLP. “TBIs are all about speed and impact — and children’s brains cannot sustain that type of impact at such a young age.”

She points to examples such as former professional snowboarder Kevin Pearce, who sustained a career-ending TBI prior to the 2010 winter Olympics, and Nicole Wren, an 11-year-old who was killed at the Calabogie Peaks Resort after crashing into a tree.

Due to the risks involved, ski hill operators try to limit their exposure to legal claims through the use of a waiver of liability, which is commonly printed on the back of lift tickets and doesn’t require a signature, Burrison says.

“That waiver forfeits your right to commence a lawsuit against that particular operator for injuries sustained while skiing, snowboarding or tubing,” she says. “However, there is some case law out there that says a waiver may not be applicable to children because they don't buy their own tickets."

Burrison says these ‘ticket cases’ have been tested in British Columbia but the case law is still developing in Ontario.

Two recent cases awaiting judgment from the Court of Appeal deal with personal injuries suffered by the plaintiffs at ski facilities and whether the defendants violated the deemed warranty under ss. 9(1) of the Consumer Protection Act, she adds.

In the meantime, Burrison says everyone in the family should be wearing helmets when hitting the slopes to reduce the risk of TBIs.

With tobogganing, in particular, helmets are non-negotiable, and parental supervision is a must, she says.

“Our firm has represented several children and adults who have suffered horrific injuries while tobogganing,” says Burrison, whose practice includes pediatric brain injuries. “Ski resorts are well-funded and — as a result of defending against personal injury litigation —  they try to take good care in labelling the hills, grooming the snow properly and roping off trees and other hazards.

“But with tobogganing, no such care is taken,” she says. “Basically, whoever can find the steepest local hill goes down it on a sled and everyone else seems to follow. There's no order as to how the kids are going down the hill.”

Burrison recommends that adults should investigate the hill to make sure it’s clear.

“Go down it yourself first,” she says. “Take on a supervisory role and make sure kids are going down one at a time and not running into each other with their sleds. It’s much more difficult for a child to manoeuvre quickly in a toboggan.”

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