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Waiver being tested again

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Company liability and assumed personal risk are being weighed by the courts once again following a tragic accident involving a commercial recreation tour operator.

Whistler River Adventures is facing allegations of gross negligence following the 1998 death of a Saskatoon woman on the Birkenhead River in what could be a protracted legal battle.

Legal counsel for Whistler River Adventures, however, believes the company is not negligent and maintains the company is covered by its waiver.

This is one of the latest in a series of court cases over the last couple of years that deal with the efforts of B.C. recreation companies, usually ski facilities, to limit claims by injured patrons through the use of waivers.

The B.C. Supreme Court has on many occasions upheld the waivers, or release forms, found in the body of day tickets as well as in more sophisticated contractual documents which are executed and delivered as part of a seasons pass arrangement.

Marjorie Braid, 47, died after being flipped from a raft that struck a log protruding into the rapidly-flowing Birkenhead River on June 13. She was trapped under the log and drowned.

Seven others in the raft, including Marjorie’s husband Jeffrey Braid and river guide Ian Bunbury, made it to shore safely.

It took two-and-a-half hours to recover her body. A helicopter had been used in the initial search in the hopes that Braid had been carried unseen downstream.

Braid and her husband were in one of three rafts being guided by Whistler River Adventures that day. The trip had been organized as part of a conference they were attending in Whistler connected with the carpeting and floor-covering business. It was the first serious accident in the history of the 15-year-old whitewater rafting company.

Braid’s husband launched legal proceedings against the company for damages.

Counsel for Whistler River Adventures, Robert B. Kennedy, asked the court in September this year to dismiss Braid’s action on the grounds that the waiver signed by Marjorie Braid was a complete defence.

Braid’s counsel, on the other hand, asked to amend the original claim for damages to include allegations that Whistler River Adventures was grossly negligent.

Braid’s lawyer, Daniel Le Dressay, also asserted that the river company was an "occupier" of the river within the meaning of the Occupiers Liability Act and that the company breached the duty of care owed under that Act.

Justice Jacqueline Dorgan, in her judgment handed down Dec. 8, dismissed the application to plead the Occupiers Liability Act.

The Act defines an "occupier" as a person who is in physical possession of premises and one who has control over who enters the premises, the condition of the premises and the activities carried out on the premises. Dorgan said, even assuming the portion of the Birkenhead used by the river company could be brought under the definition of "premises", Whistler River Adventures did not have physical possession of it and no control over who used and entered the river since it is open to the general public.

She did rule, however, that Braid could amend his claim to include allegations of gross negligence.

In her reasons for judgment, Dorgan noted that the definition of gross negligence is not rigid but reflects the degree to which conduct falls below the appropriate standard of care. For example, in situations where the standard of care is very high, the standard for gross negligence is arguably anything less than ordinary care.

She pointed to a decision in another case, Ogilvie v. Donkin, where it was found that where the risks involved are such that, "if more than ordinary care is not taken, a mishap is likely to occur in which loss of life, serious injury or grave damage is almost inevitable," failure to take ordinary care may amount to gross negligence.

Dorgan's decision allows Braid to proceed with his case against Whistler River Adventures. Braid’s counsel would like to see trial by jury.

Kennedy said, however, the judge’s decision to allow the amendment doesn’t mean there is any evidence of gross negligence.

"As far as we are concerned there is no evidence of negligence, let alone gross negligence."

The plaintiffs will try and prove there is.

But before it gets to that stage, Kennedy will seek leave to appeal Dorgan’s recent decision to the B.C. Court of Appeal. If Kennedy were to lose his application to dismiss the action on the appeal, the case could then go to trial some time in 2002-2003.

Kennedy said Whistler River Adventures is a well established Whistler company with highly experienced guides and a long history of safe and successful operation.

"This is the first accident they have had of any significance," noted Kennedy. "The guides were well aware of the log that was involved in the accident as they are aware of the hundreds of hazards up and down the river. There are technical corners they had to get by and rapids and so on. It was one of many hazards and a hazard-free river is probably not going to generate much interest."

That, said Kennedy, is the point of a waiver in adventure recreation.

"What happened in this case, with poor Mrs. Braid falling from the raft and being trapped under the log, is what can happen in river rafting and that was clearly spelled out in the waiver. It is our position that that is covered by the waiver and that it is a fair thing to do," he said. "We expect the court will ultimately agree with that position."

Marjorie Braid signed and initialled the waiver which includes the statement: "I am aware that jet boating and river rafting involves many risks, dangers and hazards including, but not limited to; … the overturning or upsetting of the boat or raft; … falling from the boat or raft while on the river; impact or collisions with rocks, trees, logs, deadfall …"

Four days before the accident, Whistler River Adventures staff noticed that two fallen trees had drifted onto a gravel bar making navigation in the more technical part of the course more difficult. Guide Bunbury determined they were an unacceptable hazard and the following day made cuts in the logs, causing them to move downstream.

One log moved beyond the raft take-out point. The other came to rest on a gravel bar within the rafting course. It took between a quarter and a third of the river’s width. It was the log that eventually caused Braid’s death.

The river company acknowledged it did view the log as a hazard, but not one significant enough to remove. The company, noted the judge, had clearly considered whether or not to move the log and decided against it.

The company took a total of 15 rafts past the log without incident and river guide Eric Ridington, of another company, rafted past the log on June 10. He testified that while he had to manoeuvre around it, it was not difficult and a typical obstacle for this kind of rafting run.