Waiver being tested again 

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.

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