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Waiver being tested again



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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.