Ontario is fortunate to have an abundance of lakes and rivers, as well as recreational facilities for water based activities. There is increased risk that comes with our access to water: drowning is the primary cause of fatalities for recreational and sporting activities. Of all the provinces, the most drowning fatalities happen in Ontario; 3,214 occurred from 1991 to 2010 according to the Red Cross. Drownings can result from a variety of events including boating and swimming accidents, or from accidents while bathing. Drownings also sometimes happen when people accidentally fall into the water, from docks, poolside or from the shore of lakes and rivers.
Drownings are almost always preventable. An extensive Canadian Red Cross study of water based fatalities over 20 years determined that 90 per cent of boaters who drowned were not properly wearing a life jacket at the time of the accident. Often, a life jacket was on board but not being worn and in many cases, the person who drowned (and who was not wearing a life preserver) was a weak swimmer.
Drowning is a leading cause of preventable death for young children, and most at risk are children under five. Children can drown in bathtubs, pools, and natural bodies of water such as lakes, rivers and ponds. When a two year old child died from drowning in a neighbourhood pond in June 2012, a Scarborough homeowner was charged with criminal negligence. The pond was not fenced, in contravention of municipal bylaws requiring fencing around backyard pools and ponds.
In June 2015, a six year old St. Catharines girl suffered fatal injuries from drowning. She was swimming in a backyard pool in St. Catharines when the accident occurred, and was transported to a Hamilton hospital where she tragically died from her injuries.
The accidental drowning of a young child can happen in a blink of an eye when a caregiver is distracted or not present. The absence of proper adult supervision is a key risk factor in drownings: the Canadian Red Cross found that 80 per cent of home pool drownings happened when the victim was alone. Another risk factor is the absence of a self-latching and self-closing gate, particularly associated with the drowning deaths of children under five.
When drowning results from a boating accident, the primary causal factors are: not wearing a life preserver; poor planning such as a failure to check weather forecasts (and correspondingly, avoid trips during storms or rough seas); boating while impaired; and inexperience. For victims over 15 years of age, alcohol was present or suspected in 46 per cent of drowning deaths while boating, according to a Red Cross study of boating fatalities. While under the influence of alcohol or drugs, a person’s ability to make good decisions and their swimming capability are both undermined and the risk of drowning correspondingly increases. Alcohol (or drug) associated drownings can occur when a person inadvertently falls into the water, a boat crashes or capsizes, or they make a conscious decision to swim or dive while impaired.
An unfortunate incident of drowning occurred in Niagara-on-the-Lake in November 2014 when a 24 year old man walked into Lake Ontario and drowned while under the influence of drugs. Police were called to a home when a man was heard screaming outside one evening. The man, who had taken narcotics at his friend’s house in St. Catharines, was experiencing delusions and speaking incoherently and refused to stop for the police officer. He walked into Lake Ontario and would not turn back at the Officer’s request. The police officer called Niagara firefighters to the scene, but the man had already been carried out into the lake and they were unable to rescue him due to the darkness and almost meter high waves. When his body was recovered, it was determined that he died of drowning and hypothermia.
Under the Occupiers’ Liability Act, 1990, the occupier of a property has a duty of care to ensure that people entering their property are kept reasonably safe while on the property; this legislation applies to any infrastructure and activities on a premises, including pools. The ‘occupier’ is the person who has ownership of the property, or the person who has control over or responsibility for it, such as a tenant. The occupier’s duty of care does not apply if a person who enters the premises willingly assumed by a person who enters the premises as long as the occupier did not create a danger with the intent of doing harm or acted with reckless disregard.
The implications of the Occupiers’ Act for homeowners with pools and public swimming facilities is that they have a duty of care to ensure that no one will come to harm while swimming on the premises. Our duty of care to children is greatest as they are perceived as most vulnerable and innocent victims, and the consequences of unsafe actions can be catastrophic. Homeowners should ensure that fencing around their pool or pond meets municipal regulations and that young visitors are properly supervised. Public facilities must have an adequate number of properly trained lifeguards present who can effectively supervise swimmers, or it must be clearly posted that lifeguards are not present.
In the unfortunate event of a drowning, pool owners, both private and public, must be able to show that they met a reasonable standard of care to ensure that people were safe on their properties. Otherwise, they may be held liable for injuries or fatalities, both criminally and in a civil suit. Parents of young children can also be found criminally negligent in a drowning of their own child if they failed to supervise them or were negligent in some other manner.
Injury Lawyers of Ontario advocate for individuals who were injured or lost a family member due to the negligence of another person or party. We have an unparalleled team of compassionate and skilled personal injury lawyers who can advise you on the optimal course of action given your unique situation. Depending on the extent of your injuries or loss from an accident, you may be entitled to benefits for loss of income, medical expenses, rehabilitation expenses, housekeeping and home maintenance benefits, or family expenses. Give us a call and let an ILO attorney help you get the compensation you are owed.