In the hot steaming summer months, many Toronto residents head for the beaches or set off for holiday outings at the local lodge for a spell of much needed rest and relaxation. But all too often, a planned trip of leisure at the lake can turn into an occasion for catastrophic injury, with all the attendant legal damages and financial loss that might follow.

While guests are often presumed by lodge owners to assume, and consent to, a risk of possible injury when operating a vessel on open water, special circumstances might apply in boating accident cases where lodge owners have been deemed to fail in their duty to provide warnings about known dangers – a warning that might be particularly relevant to guests with relatively sophisticated navigational skills.

In the British Columbia Supreme Court decision of Cuppen v. Queen Charlotte Lodge Ltd., for instance, the Court awarded the plaintiff damages in respect of injuries sustained in a boating accident at a lodge. In this case, the defendant lodge asserted that the plaintiff “knew of and consented to the risk of possible injuries in operating a vessel.” Moreover, the injured guest was deemed by the Court to be a relatively experienced passenger, presumably cognizant of the dangers inherent in recreational navigation. Why, then, would the Court impose liability on the lodge in this instance?

In Cuppen, the injured plaintiff asserted that the defendant lodge was negligent in equipping its boat with “a defective steering system.” According to the plaintiff, the lodge had a duty to warn about dangers it ought to have been aware of at the time. Yet in this case, the Court determined that the “nature or cause of the defect” was unclear, and further, that the plaintiff was unable to show that the defect was caused by the negligent conduct of the lodge. As the Court noted:

While I am satisfied that there was a defect in the boat, it is not possible to determine the nature or cause of the defect. I am not able to infer that the defect itself arose from the lodge’s actions. The defect may have been caused by the manufacturer of the steering system. The evidence does not allow me to exclude this as a possible cause of the defect in the boat. Therefore, the plaintiff has not satisfied me that the defect itself was due to negligence by the lodge.

However, I am satisfied that the lodge had a duty to warn [the plaintiff] of dangers it knew or ought to have known of in using the boats.

So here we have a case where a guest at a lodge – who was sophisticated in the ways of recreational boating – was unable to show that the defect causing his injury was due to the defendant’s negligence – yet was still able to prevail upon the court to successfully award him damages for his personal injury. How could this be?

The Court determined that the lodge had failed in its duty to warn of dangers that it ought to have known of. As the evidence showed, the lodge had previously “received reports of ‘unexplained’ problems guests were experiencing with the boats” – two of which specifically referred to possible defects in the steering mechanism. The fault of the lodge lay in the fact that it did not convey warnings to its other guests upon receiving notification of possible dangers, so that the guests – in the court’s words – would be able to maintain a state of “vigilance”, taking certain added precautions to avoid possible injury even while assuming the risks of taking a boat out on the water.

In this case, the fact of the injured plaintiff’s relative experience and sophistication with boats worked against the interests of the defendant lodge. As the Court saw it, it was precisely the lodge’s failure to warn of possible dangers that resulted in injury insofar as the plaintiff was not accorded the benefit of his experience to maintain a state of precautionary vigilance in the light of such warnings. In other words, he might very well have avoided the injury had the lodge responsibly conveyed warnings pertaining to the prior guest complaints.

The Court grounded its reasoning on the Supreme Court of Canada decision of Hollis v. Birch, noting that:

…a manufacturer of a product has a duty to warn customers of dangers it knows or ought to know are inherent in the products used. The duty is a continuing one, requiring manufacturers to warn not only of dangers known at the time of sale, but also of dangers discovered after the product has been sold and delivered.

Proceeding from those principles, the Court went on to impose a “high onus” on the lodge to warn of possible dangers, even if not sufficiently explained by the guests reporting them:

…given the danger inherent in the use of a boat on the open water and the likelihood of injuries should the guest experience difficulty with steering, such as that described in the reports, there was a high onus on [the defendant] Lodge to alert its guests to the possible problem. The lodge would have the same duty to warn, whether the steering difficulty which I have described is considered a defect (as I have concluded) or merely a feature of the boat.

In answering the defendant’s assertion that the plaintiff voluntarily assumed the risk of possible injury, the Court concluded:

[The Plaintiff] did not agree to waive any claim for negligence against the lodge. He was not warned of the difficulty other guests were experiencing with the boats, so was not aware of the specific risks. He did not consent to accept the risk of injury. This defence fails.

So what have we learned from this decision? From the defendant’s point of view, when operating a business that supplies vessels for use on open water, any prior reports of possible defects should be conveyed as warnings to future customers. From the plaintiff’s point of view, a personal injury lawyer would do well to investigate records pertaining to prior complaints, in order to assess whether a defendant has failed in its duty to take certain precautions to warn its customers to avoid the possibility of injury.

Author Bio: Mario Cariati B.A. L.L.B. is focused specifically on providing legal representation and services to people who have suffered personal injuries through car accidents, slip and fall, medical malpractice and boating accidents. For more information about Cariati Personal Injury Lawyers visit personal injury law in Ontario.

Category: Legal
Keywords: law, lawyer, personal injury, safety, law firm, boating