At paragraph 30, Justice Wilson outlines Sundances position that tubing is an inherently dangerous activity. Of course it is. As such, why can it not be said that Crocker voluntarily assumed the risks? Read paragraphs 33 35. please answer asap. THANK YOU

Sundance Northwest Resorts Ltd. Respondent INDEXED AS: CROCKER v. SUNDANCE NORTHWEST RESORTS LTD. File No.: 19590 . 1988: March 25; 1988: June 30. Present: Dickson C.J. and Estey*, McIntyre, Wilson, Le Dain, La Forest and L'Heureux-Dub JJ. ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO Torts -- Negligence -- Sporting accident -- Competition inherently dangerous -- Participant visibly intoxicated -- Whether or not competition organizers had a positive duty to take steps to remove drunk competitor from competition. Respondent, as a promotion for its ski resort, held a competition which involved two-person teams sliding down a mogulled portion of a steep hill in oversized inner tubes. Appellant entered the competition, signed the entry and waiver form without reading it and paid the entry fee. During the competition, appellant suffered a neck injury in the second heat and was rendered a quadriplegic. He was visibly drunk at the start of that heat and had suffered a cut above the eye in the first. The owner of Sundance had asked appellant if he was in any condition to compete in the second heat but did nothing to dissuade him from continuing on. The resort manager, too, had suggested that appellant should not continue the competition but took no further steps to restrain him when he insisted on competing. Appellant successfully sued respondent in tort but was found to be contributorily negligent. He was awarded 75 per cent of his damages. A majority of the Court of Appeal overturned the trial judge's finding of liability. The issue on appeal to this Court is whether the ski resort had a positive duty at law to take steps to prevent a visibly intoxicated person from competing in its dangerous "tubing" competition. Held: The appeal should be allowed. Respondent as the promoter of a dangerous sport owed a duty of care to the appellant to take all reasonable steps to prevent him from participating in the sport when it was aware that he was visibly intoxicated. Respondent did not discharge that duty. While it may be acceptable for a ski resort to allow or encourage sober able-bodied individuals to participate in dangerous recreational activities, it is not acceptable for the resort to open its dangerous competitions to persons who are obviously incapacitated. Injury to the appellant was clearly foreseeable in this case and respondent's failure to take reasonable steps to prevent appellant from competing because he was drunk caused appellant's injury. Appellant did not, either by word or conduct, voluntarily assume the legal risk involved in competing. The volenti defence, therefore, was inapplicable. Appellant's participation in the tubing competition did not amount to an assumption of the physical risks involved, let alone the legal risks, given that appellant's mind was clouded by alcohol at the time. Although a contractual waiver clause can serve as a full defence to a claim in tort, the waiver signed by appellant did not relieve respondent of liability for its negligent conduct because it had not been drawn to appellant's attention and had not been read by him. The trial judge's conclusion with respect to contributory negligence was not challenged and should not be interfered with by this Court. APPEAL from a judgment of the Ontario Court of Appeal (1985), 1985 CanLII 2182 (ON CA), 51 O.R. (2d) 608, 9 O.A.C. 286, 20 D.L.R. (4th) 552, 33 C.C.T.L. 73, allowing an appeal from a judgment of Fitzpatrick J. (1983), 1983 CanLII 1745 (ON SC), 43 O.R. (2d) 145, 150 D.L.R. (3d) 478. Appeal allowed. Colin Campbell, Q.C., and Mark Freiman, for the appellant. Stephen Goudge, Q.C., for the respondent. The judgment of the Court was delivered by 1. WILSON J.--The principal issue in this appeal is whether the ski resort had a positive duty at law to take certain steps to prevent a visibly intoxicated person from competing in the resort's dangerous "tubing" competition. The resort contends that it had no such duty but, if it did, it adequately discharged it. The appellant Crocker contends that it had such a duty and failed to discharge it. I The Facts 2. The respondent, Sundance Northwest Resorts Ltd. ("Sundance") operates a ski resort. Sundance held a tubing competition in order to promote its resort. This a two people sliding down a mogulled portion of a steep hill in oversized inner tubes. One evening Crocker went skiing at Sundance with a friend. After their skiing they went to a bar at the resort to drink. At the bar a video of the previous year's race was shown. The video showed people being thrown from their inner tubes. Crocker and his friend did not, however, watch much of this video. 3. 4. 5. Crocker and his friend were the winners of their first heat. During the race the two were thrown from their tube and Crocker suffered a cut above his eye. Between the first and second heats Crocker drank two large swallows of brandy offered to him by the driver of a Molson beer van and was sold two more drinks at the bar. 6. The owner of Sundance, Beals, saw Crocker between the first and second heats. Noting Crocker's condition Beals asked him whether he was in any condition to compete in another heat. Crocker responded that he was. Beals did nothing more to dissuade him. 3. Causation 30. Sundance strongly urged that, even if it was negligent, its negligence did not cause the injury suffered by Crocker. The argument here is that tubing is inherently dangerous and demands no skill whatsoever. It is thus no more risky to participate in this sport when inebriated than it is to participate in it when sober. Sundance submits, therefore, that Crocker's injury cannot be attributed to his drunkenness. The failure of Sundance to take reasonable steps to prevent Crocker from competing because he was drunk did not cause his injury. 31. This submission is completely at odds with a finding of fact made at trial. The trial judge found that the risk of injury was greater for an inebriated competitor. He said at p. 153 : It was possible for the contestants to slow their tubes and to steer them to some extent by the way they dragged their feet. There was, therefore, greater danger for an intoxicated competitor who would be less inclined to slow, and less able to slow or steer his tube so as to avoid the moguls. It is not the role of this Court to question such an eminently reasonable finding of fact. 4. Voluntary Assumption of Risk 32. The defence of voluntary assumption of risk is based on the moral supposition that no wrong is done to one who consents. By agreeing to assume the risk the plaintiff absolves the defendant of all responsibility for it. As Fleming puts it in The Law of Torts, supra, at p. 264: Obviously this defence bears much resemblance to contributory negligence. Most often, indeed, the two defences overlap: viz. whenever knowingly to assume a risk is also negligent, e.g. riding in a car with a drunk driver. But like intersecting circles, some cases support one defence without the other; thus to assume the risk may in some circumstances be perfectly reasonable or (per contra) the risk, though unreasonable, may not be fully appreciated. As long as either defence defeated the plaintiff entirely, precise demarcation served only academic interest, but the introduction of apportionment for contributory negligence has posed a serious problem concerning the future role of voluntary assumption of risk as a complete defence. It seems rather odd that a plaintiff who is himself negligent might now fare better than one who is not, e.g. that an intoxicated passenger should stand a better chance against a drunk driver than a passenger who is sober. The judicial response to this dilemma has been to impose ever stricter requirements for the defence of volenti to the point where it is now but rarely successful. Presumably the reason for not formally drawing the defence within the net of apportionment (or what would amount to the same, flatly abolishing it) is the feeling that people should remain free to agree to waive their legal rights, at least under conditions of free and informed choice. Since the volenti defence is a complete bar to recovery and therefore anomalous in an age of apportionment, the courts have tightly circumscribed its scope. It only applies in situations where the plaintiff has assumed both the physical and the legal risk involved in the activity (see: Car and General Insurance Corp. v. Seymour, 1956 CanLII 451 (SCC), [1956] S.C.R. 322; Dube v. Labar, 1986 CanLII 67 (SCC), [1986] 1 S.C.R. 649). 33. In the present appeal an attempt could be made to found a volenti defence either on (a) Crocker's voluntary participation in a sport that was obviously dangerous or (b) the fact that Crocker signed a waiver form two days before the competition. I will examine each of these bases in turn. 34. The first basis can be disposed of in short order. Crocker's participation in the tubing competition could be viewed as an assumption of the physical risks involved. Even this, however, is dubious because of the fact that his mind was clouded by alcohol at the time. It is well-nigh impossible to conclude, however, that he assumed the legal risk involved. Sliding down a hill in an oversized inner tube cannot be viewed as constituting per se a waiver of Crocker's legal rights against Sundance. 35. The argument that Crocker voluntarily assumed the legal risk of his conduct by signing a combined entry and waiver form is not particularly convincing either. The trial judge, having heard all the evidence, drew the following conclusion on the issue of the waiver at pp. 158-59: I find that no attempt was made to draw the release provision to Mr. Crocker's attention, that he did not read it, nor in fact, did he know of its existence. Therefore, Sundance had no reasonable grounds for believing that the release truly expressed Mr. Crocker's intention. In fact, in so far as he was signing anything other than an application form, his signing was not his act. Given this finding of fact, it is difficult to conclude that Crocker voluntarily absolved the resort of legal liability for negligent conduct in permitting him, while intoxicated, to participate in its tubing competition. I would conclude, therefore, that Crocker did not, either by word or conduct, voluntarily assume the legal risk involved in competing. The volenti defence is inapplicable in the present case. 5. Waiver as Contractual Defence 36. Sundance correctly points out that a contractual waiver clause can serve as a full defence to a claim in tort. In Dyck v. Manitoba Snowmobile Association Inc., 1985 CanLII 27 (SCC), [1985] 1 S.C.R. 589, the plaintiff took part in a snowmobile race. The plaintiff collided with Wood, an association official, who following usual practice had signalled the end of the race by moving to the middle of the track. The collision caused the plaintiff to strike the outside wall of the track. The plaintiff was injured and sued the Association in tort. This Court agreed with the courts below that, while the Association had been negligent, it was exonerated from liability by the waiver clause in the entry form