Personal Injury
Case Summaries
Note: In Canada the Marine Liability Act extends the application of the Athens Convention to non-paying passengers carried on a vessel used for purposes other than pleasure. Accordingly, many personal injury cases are dealt with under the Athens Convention and those cases are summarized under Carriage of Passengers. Also, as personal injury is subject to limitation of liability, the page entitled Limitation of Liability is relevant. For limitation/prescription periods, see the page entiled Limitation Periods. The Collisions section may also contain information relevant to some personal injury claims.Capsize - Fatal Injury - Criminal Negligence
R. v. Broadwith, 2007 BCSC 1910
The accused was the Captain of a houseboat that capsized resulting in the death of a passenger. He was charged with criminal negligence causing death. Although the Court accepted the evidence of the Crown’s expert that the house boat was overloaded and was destined to capsize because of this, the Court held that the Crown had failed to prove the Captain’s conduct amounted to criminal negligence. One of the critical findings leading to the acquittal was that the Captain was not aware there were an excessive number of passengers on board. The sinking occurred because two passengers pushed the boat away from the dock before the Captain had given his safety speech and before he could count the number of passengers onboard.
Capsize - Fatal Injury - Dependents Claims - Damage Assessment
Wilcox v The Miss Megan, 2008 FC 506, affirming 2007 FC 1004
This was a case in which the Defendant admitted liability for a fatal injury when a fishing vessel capsized. The deceased drowned. Claims were made under the provisions of the Marine Liability Act by the deceased’s widow, three adult children and brothers and sisters. The first issue was whether the brothers and sisters could make a claim under the MLA. The Prothonotary held that they were clearly entitled by s. 4(c) of the Act. The Prothonotary next considered the pecuniary damages. The Prothonotary rejected the Defendant’s argument that a deduction should be made for successful mitigation by the widow holding that a widow had no obligation to mitigate. The Prothonotary also said that the appropriate means of accounting for personal expenditures by the deceased in a two income household was to use the “cross-dependency method” (which applies a dependency rate to family income as opposed to personal income). The Prothonotary next considered whether two of the dependents were entitled to damages for loss of valuable services provided by the deceased and held that they were. Finally, the Prothonotary considered damages for loss of care, guidance and companionship. The Prothonotary noted that the MLA provided no guidance as to how these damages should be calculated and further noted that the provinces seemed to have taken two distinct approaches; a conventional award or an award based on assessment of the evidence on a case by cases basis. The Prothonotary held that legislation in Ontario bore the closest resemblance to the MLA and adopted the Ontario case by case approach. In assessing actual damages the Prothonotary consulted the Ontario cases for guidance. The Prothonotary awarded the widow and a disabled daughter $75,000 each for loss of care, guidance and companionship. The other two children were awarded $25,000 each. The siblings were each awarded $15,000. The Defendant appealed the order of the Prothonotary but the Appeal Judge upheld the decision in its entirety.
Personal Injury - Duty of Care of Boat Rental Company – Damages
Wozniak v Alexander, 2008 ABQB 430
The Plaintiff was seriously injured while tubing when her foot was nearly severed by the propeller of the towing boat operated by one Defendant. The operator admitted liability but alleged liability should be shared with the company from whom the boat was rented. The Court held, first, that a duty of care was owed by the rental company. In fact, this seems to not have been seriously contested. The Court then found that the rental company had breached this duty by not taking adequate steps to determine the experience level of those who would be operating the vessel and by not giving adequate instruction. In particular, none of the vessel’s occupants were instructed on towing procedures or how to “kill” the engine and when that should be done. With respect to causation, the Court recognized the “but for” test was the appropriate test and held that “but for” the inexperience of the operator and the lack of proper instruction, this accident would have been avoided. The Court then apportioned liability equally between the operator and boat rental company. The Court awarded: general damages for loss of pleasure and enjoyment of life at $120,000; cost of future care and housekeeping at $40,000; and loss of earning capacity at $50,000.
Personal Injury – Fishing Lodge – Defect – Failure to Warn – Limitation
Cuppen v Queen Charlotte Lodge Ltd. et al, 2006 BCCA 443 affg. 2005 BCSC 880
The Plaintiff was a guest at the Defendant's fishing lodge. He was provided with a fishing boat by the Defendant and was injured while operating the boat. The trial Judge found that the boat veered suddenly and dramatically through no fault on the part of the Plaintiff. The Plaintiff was thrown against the starboard side of the boat and suffered a serious break to his right femur. The trial Judge found that the accident was caused by a defect in the boat but was not able to determine the particular defect and was therefore not able to conclude that the Defendant was negligent in equipping the boat with a defective steering system. The trial Judge further found, however, that a number of complaints had been made to the Defendant about the steering systems by previous guests and held that the Defendant was liable for failing to properly warn the Plaintiff about possible problems with the steering and for failing to take steps to address the complaints. A further issue in the case was whether the applicable limitation of liability was that contained in Part 3 of the Marine Liability Act (Limitation of Liability for Maritime Claims) or Part 4 of the Marine Liability Act (Carriage of Passengers). The trial Judge held that the limitation in Part 4 only applied where there was a contract of carriage and that in this case there was no such contract, the Defendant having merely provided the Plaintiff with a boat to fish. Accordingly, the applicable limitation was $1 million as provided in Part 3 of the Marine Liability Act. In result, the Plaintiff was awarded damages of an amount in excess of $300,000. An appeal by the Defendant to the Court of Appeal for British Columbia was dismissed on the grounds that the arguments on appeal related primarily to questions of fact.
Constitutional Law – Occupiers Liability Act – Personal Injury on Wharf
Jackson v Fisheries and Oceans Canada, 2006 BCSC 1492
See the summary under “Admiralty Jurisdiction” where it was held that the provincial Occupiers Liability Act applied to a slip and fall on a ramp leading to a wharf.
Personal Injury - Burden of Proof - Limitation Period
Ferguson v Arctic Transportation Ltd., (May 8, 1998) No.T-1941-93 (F.C.T.D.)
This was an action for damages for personal injury. The Plaintiff was a Panama Canal Pilot. At the time of the accident he was one of three Pilots on board the barge "AMT Transporter", ex the "Arctic Tarsiut", when she was transiting the Panama Canal. He was injured when an emergency tow line secured to the sides of the barge apparently became snagged, whipped up and hit him. The Plaintiff alleged that the Defendants were negligent and the barge was unseaworthy in that the emergency tow line had been improperly secured. The trial judge, however, dismissed the Plaintiff's claim. She found that the barge had been prepared for transit through the canal by a reputable contractor, that the Panama Canal Commission had approved the method of securing the tow line and that the Panama Canal Commission inspectors had inspected the work after it was done. The trial judge further noted that at the time of the accident the barge was under the exclusive control of Panama Canal Commission employees. Accordingly, the trial judge found that the Plaintiff had failed to prove negligence or unseaworthiness.
A second issue in the case concerned the applicable limitation period. The Defendant argued that the matter was governed by Panamanian law which provided for a one year limitation period. The Plaintiff argued that the matter was governed by section 275 of the Canada Shipping Act which provides that in the absence of a limitation period in the act itself the case should be governed by the law of the Port of registry (i.e.. Canada). The trial judge held that section 275 applied only to seamen working on Canadian ships and that it had no application to an accident involving a foreign pilot in foreign waters. Consequently, she found that the action was time barred.
Personal Injury - Liability of Wharf Owner
Hawkins v The "Margaret Elizabeth No.1" et al., (June 10, 1997) No.T-2515-94 (F.C.T.D.)
This case concerned a 17 year old plaintiff who was injured when the rigging of a fishing vessel struck a light pole on a wharf causing it to fall and strike the Plaintiff. The Plaintiff brought this action against the fishing vessel. The fishing vessel in turn brought a third party action against the Crown as owner of the wharf. The fishing vessel was held 100% liable for the accident. The Court rejected the third party claim finding that the Crown was not aware of any defects in the light poles and that any defects were hidden and would not have been discoverable on a reasonable inspection. The Plaintiff was awarded in excess of $438,000.00.
Water Skier - Contributory Negligence
Martin v Derrach, (January 2, 1997) No. GSS 2303 (P.E.I.S.C.)
This was a claim for personal injury damages arising out of a water skiing accident. The Plaintiff was being towed behind the Defendant's Jet Ski when she collided with an anchored boat and severely injured her right leg. Although there was no spotter aboard the Jet Ski, the parties agreed that the absence of a spotter was not causative. The Court held that the Jet ski driver clearly had a duty to take reasonable care for the safety of his skier and that this duty required he drive safely and on a course in which the skier would be safe from collision. The Court, however, found that the driver had done so and that the collision was caused by the skier deliberately choosing to ski a path in close proximity to the anchored power boat. In result, the action was dismissed.