The Marine Liability Act Limits Compensation for Boating Accident Injuries in Canada

One of the silver linings of the COVID-19 pandemic is that people have been trying new activities. When gyms closed last spring, a Canada-wide bicycle shortage ensued, and the City of Toronto shut down a major arterial route once a week to allow cyclists to enjoy their new hobby in relative safety. Come summer, Ontarians faced a vacation season without international travel, so they adopted domestic alternatives, including boating. Boat sales surged, as did the number of inexperienced boaters on the water.

“When people were considering what to do with their leisure dollars, they couldn’t travel. They weren’t eating out,” said Carolyn Burgess, the owner of a marine retail store in Scarborough, to BNN Bloomberg in January. “They needed an outlet to spend some money, while also isolating – so bingo, they bought a boat.”

A similar trend took place in the United States, where sales of boats and related marine products and services jumped 9 per cent, year-over-year, to a 13-year high of $47 billion, according to CNBC.

Boating is an ideal pandemic-era activity. It can only be enjoyed outside and limits social interaction to the handful of people that can fit on board. It also tends to draw people away from city centres, where the virus spreads more quickly. However, boating also comes with significant safety issues.

As we mentioned in a previous blog, dozens of Ontarians are killed or seriously injured in boating accidents every year. Most of these accidents are avoidable. Over the past two summers, the high number of inexperienced boaters on the water has increased the risk of accident and injury. This is especially significant because, in Canada, boating accident compensation is strictly limited under the Marine Liability Act (MLA) which caps compensation at $1 million unless the plaintiff can prove an extremely narrow definition of negligence.

“A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result,” the act reads.

In other words, in order for a personal injury plaintiff to receive more than $1 million in compensation, their boating accident lawyer would have to prove not only that the defendant knew that injuries would ‘probably result,’ but also the likely extent of the injuries.

Last month, Law Times reported on the decision in a boating accident claim that illustrates the potentially catastrophic impact of this narrow definition of ‘conduct barring limitation.’ The claim revolved around a 2007 boating accident that left a nine-year-old boy with a catastrophic traumatic brain injury.

The plaintiff in this case, Nash Woodbury, was being pulled in an inner tube by a boat driven by his father, Robert Woodbury. At a certain point, the boat entered a small cove and made a turn that brought the inner tube in line with a stationary boat. The father was looking back at the inner tube and didn’t realise that a collision was likely until he heard calls from the stationary vessel. At the last minute, the father made a sharp turn that sent the inner tube slamming into the side of the stationary boat. Following the accident, the father admitted that he had seen the other boat when he entered the cove, and police found open alcohol on his boat.   

Nash, who is now in his 20s, will never work and will require significant medical attention, including 24-hour attendant care, for the foreseeable future, Law Times reports. The judge in the case found that Robert had acted negligently and had operated his boat in a reckless manner. However, the judge was not able to determine that Robert knew that Nash’s injuries were likely to occur.

As a result, Nash will be entitled to a maximum of $1 million, a relatively minor amount considering the extent of his injuries and the care he will require. Nash’s lawyer told Law Times that the total value of the damages her client incurred is likely to be calculated between $10 and $15 million.

“It was an exceptional case with all of the hallmarks of a defendant who was acting recklessly,” the lawyer told Law Times, before adding: “It doesn’t matter how severe the injuries are or even how many people are hurt, the cap stands.”

Contact a Boating Accident Lawyer from Will Davidson LLP

With more inexperienced boaters than ever on Ontario’s waters, it is critically important to understand the limits of available compensation in boating accident personal injury cases. If you’ve been injured, contact Will Davidson LLP today to schedule a free, no-obligation consultation with an experienced boating accident lawyer. Our team will be happy to review your case and offer advice on how best to pursue compensation.

Image: Shutterstock

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