Outside of 'narrow, difficult' exception, damages for PI capped at $1M under legislation
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In a recent case involving a 2007 boating accident that left a nine-year-old boy with significant traumatic brain injury, the decision can only be described as “a bit of a heartbreaker,” says Stacey Stevens, partner at Thomson Rogers Lawyers.
“It was an exceptional case with all of the hallmarks of a defendant who was acting recklessly,” says Stevens, however, “given the governing legislation is the Marine Liability Act (MLA), we were required to meet the very narrow exception set out in s. 29 if we were going to recover more than the $1M cap for personal injury damages.”
In Woodbury v. Woodbury, Nash Woodbury was being pulled on an inflatable inner tube a behind a boat being driven by his father Robert Woodbury. Robert Woodbury is an experienced boater and knew Rice Lake well. He drove into a small bay, make a turn and started driving close to the shore line and directly into the path of another boat that was stationary on the water. As he was driving, Robert Woodbury was looking back at the kids on the tube despite the fact he had an adult spotter on board. The length of the tow rope and speed of the boat exceeded the manufacturer’s warning. At the last minute, Robert Woodbury heard the shouts coming from the stationary boat. He turned his gaze forward, swerved to the left which propelled the tube into the side of the stationary boat. Nash suffered a severe traumatic brain injury as a result. Following the collision, Robert Woodbury admitted to police that he saw the stationary boat when he entered the cove. Further, the police found open alcohol on board.
As a result of his injuries, Nash Woodbury (now age 22) will never work again or live independently. He has extensive future medical needs and requires 24-hour attendant care.
“If you are on a boat, being pulled in a tube, water skiing, riding a sea-doo or you are struck by a watercraft, the MLA and the Athens Convention combined cap damages for personal injury in any boating case is $1M,” Stevens says. "It doesn’t matter how severe the injuries are or even how many people are hurt, the cap stands — unless you’re able to establish that ‘the loss resulted from the driver’s personal act or omission, committed with the intent to cause such loss or recklessly and with knowledge that such loss would result.’”
In the decision, Justice O’Brien determined Robert Woodbury was negligent and was driving his boat recklessly but stopped short of the last requirement finding that Robert Woodbury knew that Nash’s injuries would probably result. The legislation also doesn’t say any or an injury, which Stevens believes could have a different interpretation, but reads “such loss,” which has resulted in the courts have interpreted very strictly and specific to the actual injury that occurred.
Stevens notes that with the COVID-19 pandemic, “so many more people are taking to the water on jet skis, in boats and even hoover boards,” which means likely boating accidents will likely become more commonplace. “There are so many more people taking up boating as a hobby, and the unfortunate reality is because of the way the federal legislation is written, claims are limited,” Stevens says.
There aren’t many significant personal injury cases in terms of the damages award, so once the judge finishes quantifying Nash’s damages “we’ll know how large this is compared to other cases,” Stevens says. Her rough calculation is they’ll end up with a judgment over $10M — maybe closer to $15M — but sadly, for Nash the Defendant will not be required to pay more than $1M.
Stevens notes there are no cases in Canada where the courts have found this exception was met, and though it wasn’t the result she was hoping for, Stevens is taking the disappointment in stride.
“We fight the good fight — sometimes we get where we need to get to, and sometimes we don’t. It’s just unfortunate that Nash’s ability to be adequately compensated for his injuries is limited.”
