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When Rides Go Wrong

This article written by Lisa D. Belcourt, a partner at Ferguson Barristers, originally appeared in the December 16, 2011, issue of The Lawyers Weekly, published by LexisNexis Canada Inc.

As a teenager I loved the thrill of roller coasters, flying swings and bumper cars; I loved the sights and sounds of the amusement park and the smells of hot dogs, candyfloss and candy apples. But as a mother and a lawyer, my enthusiasm for amusement rides has been somewhat curbed by the occasional personal injury case that I take on involving them.

Thankfully, there are few catastrophic personal injuries that occur as a result of amusement ride mishaps in Ontario, at least when compared with the number of riders and amusement parks and travelling carnivals across the province. However, many less-than-catastrophic injuries occur every year that are not reported in the media.

There are a few things to keep in mind the next time you are retained in a personal injury matter involving an amusement ride.

The Technical Standards & Safety Authority (TSSA) is responsible for the enforcement of provincial laws and regulations under the Technical Standards and Safety Act, 2000 in relation to amusement rides. The TSSA has significant investigative and prosecutorial powers.

With relatively few exceptions, owners of amusement rides must be licensed to operate the rides, have permits for each device and have a mechanic on staff.

Event organizers who rent amusement rides are required to ensure that the company they are renting from has complied with its TSSA obligations. This is of special note to municipalities, charities and others who hold carnivals and fairs, but does not affect the parent who rents a blow-up castle for his or her child’s private birthday party.

Although there are many TSSA director’s guidelines, an important one to be aware of is guideline 531/09, which outlines reporting requirements, notably that every incident “resulting in an adverse consequence to a person or property” must be reported to the director. Different reporting requirements apply, depending on the severity of the incident. Even a minor personal injury incident that does not require medical attention must be reported. Where the incident results in death, is considered serious or the ride is found to be an immediate hazard, the device must be stopped and cannot be returned to service until an inspector’s permission is obtained.

A report to the director must also be made if the device is found to be in a condition where its safe operation is affected or where there is an immediate hazard, even if it is easily repaired.

As with any quasi-governmental body, there is lots of record-keeping at the TSSA and I would suggest that you or your investigator are likely to obtain a plethora of information, either through a request made pursuant to the freedom of information and privacy laws or by court order.

This information will be necessary in order to establish negligence and could also be reviewed by an engineer to determine if there is a design flaw requiring the involvement of a manufacturer or supplier. Of particular interest in this regard are the technical dossiers that are filed by the amusement ride owners with the TSSA prior to being issued a permit for a particular device.

Another good source of documentary information are log books, which are required to be kept by each licence holder. These are designed to record the inspections and testing required for each piece of equipment before the device is opened to the public each day. Log books are a good source of information for the results of other inspections, incidents and maintenance — ​a great cross-referencing tool in relation to the TSSA records you will obtain. The log books should also provide information about the identity of attendants for each device, as well as details regarding their training.

Amusement parks and operators of carnivals and fairs may attempt to limit their legal liability by posting waiver signs where tickets are purchased and throughout the park area. This is an attempt to reduce their liability, even when there has been negligence on their part. In Ontario, courts have been cautious about enforcing waivers. Factors considered include: the location of the sign, the wording of the sign, the age of the injured party and instructions given to participants using the specific ride. Typically, the courts will require that the defendant use the clearest of language and adduce evidence that the injured party understood that language and its legal effect in order to rely on a waiver. Only in the rarest of cases will a rider be found to have genuinely consented and accepted the risk of the defendant’s negligence.

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