The occupier of a premises can be held liable for negligence in a drowning on their property.
Canada has the largest surface area of water in the world. In addition to our abundance of lakes and rivers, most communities have ample swimming facilities and there are increasingly more private pools. After motor vehicle accidents, falling and poisoning, drowning is the 4th most common cause of accidental death in Canada, according to Statistics Canada. Drownings can happen in boating accidents, while swimming or bathing, or when people accidentally fall into a pool or lake. Children under the age of five are a greatest risk of drowning in pools, but men between the ages of 15 and 44 are overwhelmingly, at the greatest risk of drownings associated with boating activities. In fact, in an in-depth Canadian study of past drowning fatalities, the Red Cross found that men accounted for 83 per cent of water related fatalities, which includes boating trauma deaths as well as drowning in any activity.
The vast majority of drownings result from a failure to take due care, which can result in tragic consequences. Sometimes, reckless or negligent behaviour associated with boating or swimming facilities leads to drowning accidents. When boat operation results in injury or death, or organisers of children’s trips operate in an unsafe manner resulting in a drowning death, they may be held responsible if it can be shown that they did not take reasonable care to keep their charges safe. Similarly, if someone drowns in a private pool or recreational facility, the homeowner or public facility may be found negligent if an unsafe condition or inadequate supervising was the cause of the drowning.
A water based facility will be held to the standards of safety defined by the municipality where they are located as well as to the standards defined in the Ontario Occupiers’ Liability Act, 1990. The Act states that the occupier of any property has a duty of care to keep anyone on their premises reasonably safe. The occupier of a premises can be an owner, tenant or anyone who has control over and responsibility for the premises. If there is a hazard or any unsafe condition on a premises, the occupier has an obligation to adequately warn anyone entering the premises of the potential danger.
Most municipalities have regulations that govern the safety of pools. Specifically, pools must be enclosed on all sides by a fence and should have self-closing and self-latching gates. Public pools and water-based facilities must have adequate supervision (life-guards) or clear signage to tell visitors that there are no lifeguards for the facility.
A failure to take reasonable care to keep people safe, particularly in the case of young children who are particularly vulnerable and at risk, can result in criminal charges or a civil suit. In June 2012, a two year old child suffered fatal injuries from drowning in a neighbour’s pond in Scarborough. The homeowner faced charges of criminal negligence because the pond was not fenced at the time of the accident.
Pool Safety Tips
It takes very little time for a young child to drown. The Canadian Red Cross determined that a lack of adult supervision is a factor in 80 per cent of home pool drownings. The vast majority of these tragic deaths occurred when the child was alone. The following precautions should be taken to ensure safety in a backyard pool or pond.
- Fencing should be a minimum of 1 meter high and surround the pool on four sides.
- A fence should not have horizontal bars that can be climbed.
- Access to the pool should not be directly from the home.
- Install a self-latching and self-closing gate.
- Never leave children unsupervised around or in a pool.
- Supervise all pool activities involving drinking and serve alcohol responsibly.
- Pool depth needs to be marked.
- Young children who cannot swim should wear life preservers at all times around pool, unless closely supervised with a high adult-to-child ratio.
- At least one adult should be trained in first-aid.
- Toddler pools should be emptied after use.
Swimming safely in lakes and rivers
In Ontario, at least two thirds of drowning accidents happen in open water, such as rivers and lakes. The following practices are recommended to prevent drowning injury.
- Always swim with a buddy
- Check the currents, water temperature and weather forecast before venturing out.
- Be aware that distances can be deceiving. Don’t attempt swims that may exceed your ability.
- Wear a lifejacket if you are a weak swimmer.
- Avoid swimming in strong currents.
- If caught in a current, float with your legs first to avoid striking an object with your head.
- If your boat capsizes, hold onto the upstream end of the boat.
- Do not mix swimming with drinking or drugs (even prescribed drugs that may impair your ability to swim or dive).
Guidelines for Boating safety
The primary reasons for boating related drownings are a failure to wear a life preserver, poor planning, alcohol consumption, inexperience, and at-risk behaviours. comprehensive study of boating fatalities carried out by the Canadian Red Cross discovered that alcohol was a factor in about half of boating drowning deaths. As well, the vast majority of drowning victims were not properly wearing a life preserver. The following behaviours are key in promoting safe boating.
- Wear a floatation device. Be aware that once a boat capsizes or crashes, victims it may be difficult or impossible to grab or put on a life jacket.
- Always verify weather conditions, including potential storms, wind and water temperature.
- Ensure all boaters involved in the operation of the boat have the necessary training. Motorboat operation requires a different set of specialized skills than canoeing down river rapids.
- Boaters should have adequate swimming skills to handle unexpected immersion.
- Wear appropriate protective equipment for cold immersion.
- Have the required safety equipment in your boat, such as life preservers for every occupant, a bailer, sounding equipment, paddle, lights and so on.
- Ensure that your boat is designed to the standard of safety for which it is being used, whether this involves venturing into open water or running rapids.
Other drowning risks
If addition to drowning accidents that occur while swimming or boating, a large number of Canadians drown every year by unexpectedly falling into the water. 81 per cent of these fatalities are males and over 20 per cent are children under five. Young children can drown when they accidentally fall off a dock, from a coastline or pool-side. Adequate and close adult supervision in higher risk environments can prevent these drowning accidents.
Bathtub drownings are a particular risk for children under 5 and adults over 80. In fact, as many people drown in a bathtub as in private pools, in Ontario. All too often, young children die when they are left unattended in a bathtub. Two young children died tragically in bathtubs in Toronto within weeks of one another. In July 2013, a two year old fatally drowned in a bathtub while under the supervision of a caregiver. The Toronto baby-sitter was said to be distracted and had left the room at the time of the accident. In August 2013, a ten month old child drowned in a tub when the mother left the bathroom briefly to get a mop to clean up spilled water. The baby was bathing with her 2 year old sister when she slipped under the water. Toronto paramedics attempted CPR but were unable to revive the young child.
In the case of adult men, alcohol and at-risk behaviour often play a contributory role in drowning fatalities. In July of 2014, a 46 year old man from Oro-Medonte Township crashed into a pedal boat with the ski boat he was driving on Bartlett Lake, north of Bancroft. The terrible crash caused the death of a couple from McMurrich/Monteith Township. The ski boat driver faces multiple charges, including ‘causing death by criminal negligence’ and ‘dangerous operation of a vessel causing death’.
There are many actions that we can take to promote safety in swimming and boating and anywhere in the vicinity of bodies 'of water. Studies have shown that many Canadians underestimate the potential risk of water-based activities, and their corresponding failure to prepare and plan for potential accidents is what often leads to serious injury or drowning fatalities.
If you were injured or lost a loved one in a drowning accident due to negligence, an experienced personal injury lawyer can best advise you on your rights. The Injury Lawyers of Ontario (ILO) law group are an affiliate of outstanding lawyers specializing in negligence suits and accident disability claims. In a no-obligation consultation, an ILO wrongful death attorney can assess whether you have a case to make a wrongful death claim for compensation. Call the ILO office in your community and let us tell you how we can help.