1. Rafting Company offered white water raft trips involving a relatively short 10 km journey down a swift river. The price of the trip, including overnight hotel and meals, was advertised at $300. Hillary and Hal, in response to the advertisement, entered into a verbal arrangement with the operator of the tour to join in on the journey, and they agreed to appear at the designated hotel the evening before the date of the excursion.

At the hotel, they met the president of the tour company and paid him the tour price. The next morning, as Hillary and Hal assembled their gear with the nine other passengers, a representative of the company spoke to the participants and instructed each of them to sign a form entitled Standard Release. The form stated that the operator of the tour was not responsible for any loss or damage suffered by any passenger for any reason, including any negligence on the part of the company, its employees, or agents. They were reluctant to sign the release, but when they were informed by the tour representative that they would not be allowed on the raft unless they signed it, they did so. When the release was signed, the representative gave each of them a life jacket with a normal adult buoyancy rating. After they donned the life jackets, they were allowed to climb aboard the raft.

During the course of the journey, the raft overturned in very rough water, and Hal and two other persons drowned. An investigation of the accident by provincial authorities indicated that the life jacket Hal had been wearing was not adequate to support the heavy weight of a person his size. The investigation also revealed that, due to the swiftness of the river at the place where the accident occurred, a more suitable life jacket would probably not have saved Hals life.

Hillary survived the accident and brought an action against the tour company under the provincial legislation that permitted her to institute legal proceedings on behalf of her deceased spouse.

what is the issue?