IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Oddy v. Waterway Partnership Equities Inc., |
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2017 BCSC 1879 |
Date: 20171020
Docket: S51759
Registry: Vernon
Between:
Kornella Oddy
Plaintiff
And
The Owners and all
Others Interested in the Ship
(and/or other property), “Annalise Official Number 827055, and
Waterway Partnership Equities Inc., and Waterway Houseboat
Builders Ltd., and John Doe, and Jane Doe, and
ABC Corporation and Brian Oddy, and David Oddy
Defendants
Before: The Honourable Mr. Justice Affleck
Reasons for Judgment
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Counsel for the plaintiff: |
M. J. Yawney,Q.C. |
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Counsel for the defendants, Waterway Partnership Equities Inc. and Waterway Houseboat Builders Ltd.: |
J. Kostyniuk |
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Place and Date of Trial/Hearing: |
Vernon, B.C. August 29-31, |
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Place and Date of Judgment: |
Vernon, B.C. October 20, 2017 |
[1] This is a common law negligence action for damages arising out of an accident on September 12, 2012 on Shuswap Lake which caused injuries to the plaintiff.
[2] On that date the plaintiff, along with her husband the defendant Brian Oddy and his brother the defendant David Oddy as well as a number of other persons were on a houseboat known as the Annalise which had been hired from the defendant Waterway Partnership Equities Inc. The claim against Brian Oddy and David Oddy was abandoned. Waterway Partnership Equities Inc. accepts that for the purposes of this action it is the appropriate defendant. I will refer to it in these reasons as “the defendant.”
[3] On September 12, 2012 the plaintiff and her party of relations and friends boarded the Annalise for what was intended to be a five day vacation on Shuswap Lake. Brian Oddy was the designated “captain”. He had experience with houseboats such as the Annalise.
[4] The Annalise is a substantial vessel of about 60 gross tons with overnight accommodation and other facilities for numerous passengers.
[5] The Annalise left its dock with the plaintiff's party on board in the early afternoon of September 12, 2012. I need not describe in detail the instructions given to Brian Oddy. It is clear that the defendant informed Mr. Oddy of the best practices in respect of the houseboat and that Mr. Oddy assured the defendant’s representative that he was familiar with the operation of a houseboat such as the Annalise.
[6] Part of what Mr. Oddy was instructed was to moor the vessel at night by driving it bow-first onto the beach and then use mooring lines from either side of the stern of the houseboat secured to “beaching stakes” well up on the beach so that each line was at about a 45 degree angle away from the sides of the vessel. The beaching stakes were provided by the defendant along with a sledgehammer and the persons in charge of the vessel were to drive the stakes deep into the beach and attach the mooring lines to them. The lines on both sides were intended to be taut.
[7] On the afternoon of September 12, 2012 the Annalise was moored in that fashion for a brief time before a wind arose which blew it sideways. It appears the starboard beaching stake had come loose because the beach soil was “very unstable”.
[8] As Brian Oddy was attempting to manoeuvre the Annalise a group of men came along in another boat and offered to tow the Annalise off the beach. That was done and the mooring lines and beaching stakes were retrieved. There was no sign that they had been damaged.
[9] The Annalise followed the other boat to a different location on Shuswap Lake where it was again beached bow-first and moored with the taut lines and beaching stakes in the prescribed fashion. This time it was possible to drive the beaching stakes into “solid ground”. There is no evidence the Annalise was improperly moored.
[10] At about 11:00 in the evening those persons on the Annalise went to bed. At about 5:00 or 5:30 the next morning the plaintiff and her husband Brian Oddy, who had been sleeping on the port side of the Annalise, were awoken by the sound of wind and saw that the port side mooring line had become slack. They realized the Annalise was drifting to that side.
[11] The plaintiff had long familiarity with boats on Shuswap Lake. While her husband was dressing she moved as quickly as possible to the helm and engine controls of the Annalise. Her intention was to start the engine and turn the Annalise so that it was again bow-first to the beach. Before the plaintiff could start the engine, as she put it, “the world just blew up”.
[12] The starboard beaching stake had been pulled loose by tension on the starboard mooring line and both the mooring line and beaching stake had been catapulted at high speed back towards the Annalise, shattering the windshield behind which the plaintiff was standing. The mooring line struck the plaintiff on her left side causing significant injuries. It is unknown if the plaintiff was struck by the beaching stake. A lengthy section of mooring line and the beaching stake came to rest near the plaintiff inside the Annalise. The forces applied to the beaching stake had caused it to be bent in the middle at an angle which the photographs in evidence indicate was about 15 to 20 degrees.
[13] The plaintiff alleges the catapulting of the mooring line and beaching stake was caused by the defendant’s failure to take reasonable care to equip the Annalise with the appropriate type of mooring line. The line used on the Annalise is alleged to have been too elastic. It was a nylon double braided line which expert evidence indicated could store energy which, when the beaching stake came loose propelled it and the mooring line rapidly towards the Annalise.
[14] The complaint of the plaintiff in essence is that the defendant ought to have used a mooring line of a type that had less elasticity. Its failure to do so was a breach of the standard of care it owed the plaintiff and the resultant accident and her injuries were reasonably foreseeable.
[15] Colleen Anderson has been the operations manager of the defendant since 2011. The defendant had about 60 houseboats in operation in 2012. She testified that the defendant employs a welder who makes the beaching stakes. There is no evidence that the beaching stake on the starboard side was unfit for its intended purpose. Ms. Anderson testified the defendant began to use Nova Braid Mooring Line on its houseboats for the purpose of mooring to beaches in 2010. It purchased the mooring line from a company known as Western Marine which specializes in providing marine equipment. Ms. Anderson understood Nova Braid to be both stronger and more durable than mooring lines previously used by the defendant.
[16] James Baldwin has been an employee of Western Marine for about 19 years. Among many other products, it is a wholesaler of rope and lines for the marine industry. Double braided nylon is widely used for mooring lines and Mr. Baldwin described Nova Braid as an “excellent all around rope”.
[17] In Lawrence v. Prince Rupert (City) and B.C. Hydro & Power Authority, 2005 BCCA 567, Finch C.J.B.C. at para. 39 quoted Fridman, The Law of Torts in Canada, 2nd ed. at page 317 as follows:
The tort of negligence has been "simply" defined as breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff. ...To establish such liability, it is necessary for the plaintiff to show: (i) that he was owed a duty of care by the defendant; (ii) that the defendant should have observed a particular standard of care in order to perform or fulfill that duty; (iii) that he broke his duty of care by failing to fulfill or observe the relevant standard of care; (iv) that such breach of duty caused damage or loss to the plaintiff; (v) that such damage was not too remote a consequence of the breach so as to render the defendant not liable for its occurrence. [Emphasis added.]
[18] I have no reason to conclude the defendant did not rely on the advice of Western Marine and that it was reasonable to do so.
[19] Several witnesses testified that they were not aware of any other incident in which a mooring line attached to a beaching stake in the manner required by the defendant for its houseboats had come loose and been propelled towards a houseboat.
[20] I heard considerable expert evidence about the properties of various types of mooring lines. That evidence explained why the mooring line and beaching stake were catapulted towards the Annalise of this action. That told me nothing about the defendant’s knowledge of that risk at the time the mooring line was purchased.
[21] The defendant owed a duty of care to the plaintiff but the balance of the test to demonstrate actionable negligence has not been met. The standard of care required of the defendant was to provide the Annalise with a mooring system that was reasonably fit to perform its intended purpose. The defendant purchased a mooring line from a recognized and reputable dealer in that product. I have no evidence that the defendant knew or ought to have known that Nova Braid of the type it purchased for the mooring system of the Annalise was not suitable for that purpose. In particular it had no knowledge that the mooring lines’ elastic properties posed a risk. It had no duty to consult an engineer or other marine expert prior to purchasing the mooring line and no duty to warn the plaintiff of a risk that the mooring line and beaching stake could be catapulted toward the Annalise. The standard of care the law imposed on the defendant was met.
[22] Even if there had been a breach of the appropriate duty of care the damage caused was too remote. It was not “reasonably foreseeable” as that expression is known in the law of torts. In Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para. 13 Chief Justice McLachlin wrote:
Much has been written on how probable or likely a harm needs to be in order to be considered reasonably foreseeable. The parties raise the question of whether a reasonably foreseeable harm is one whose occurrence is probable or merely possible. In my view, these terms are misleading. Any harm which has actually occurred is "possible"; it is therefore clear that possibility alone does not provide a meaningful standard for the application of reasonable foreseeability. The degree of probability that would satisfy the reasonable foreseeability requirement was described in The Wagon Mound (No. 2) as a "real risk", i.e. "one which would occur to the mind of a reasonable man in the position of the defendant ... and which he would not brush aside as far-fetched" (Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty., [1967] A.C. 617, at p. 643). [Emphasis added.]
[23] In Staley v. Hazell, [1990] B.C.J. No. 930 McKenzie J. dismissed a negligence action in the circumstance where a tow rope on a waterskiing boat broke and “went back across the plaintiff's face” causing injury. At page 7 of his reasons McKenzie J. wrote:
… I do not believe that this was a foreseeable event. Mr. Carpentir in his 25 years of water skiing had only heard of one similar injury. No other witnesses knew of another. In my view it was a freak accident unforeseeable by the reasonable person. It follows that the defendant had no duty to warn the plaintiff of this potential danger.
[24] In my opinion the sudden release of the beaching stake and its propulsion through the windshield of the Annalise was unforeseeable. It “would not have occurred to the mind of a reasonable man in the position of the defendant”.
[25] The action must be dismissed.
“The Honourable Mr. Justice Affleck”