The principal issue at trial was whether the defendant, Waterway Partnership Equities Inc (Waterway), breached the standard of care owed to the plaintiff, Ms Oddy, in the selection of a particular type of rope, Nova Braid, used to moor houseboats on Shuswap Lake. This question arose as the result of injuries that Ms Oddy suffered when a stake embedded in a beach, and attached by the mooring rope to the houseboat, broke free and was catapulted back towards the houseboat. The rope struck and injured Ms Oddy. Ms Oddy claimed that the rope was too 'elastic' to moor houseboats, and that if its 'anchor' failed while the rope was under tension, it would recoil toward the boat risking injury to anyone in its path.

The trial Judge dismissed the action. He accepted that Waterway owed Ms Oddy a duty of care and that the standard of care required Waterway to provide the houseboat with a mooring system that was reasonably fit for its purpose. The Judge concluded that the defendant met the standard of care. Even if Waterway had breached the duty of care, the Judge concluded that the damage caused was too remote. He found that it was not reasonably foreseeable that the rope would suddenly release and recoil towards the boat. Ms Oddy appealed.

Held: Appeal dismissed.

One of the grounds of Ms Oddy's appeal is that the trial Judge erred in not addressing an argument that the Marine Liability Act, SC 2001, c 6 (the MLA), creates a presumption of negligence against Waterway that it had not displaced. This submission is rooted in an argument that a presumption of negligence arising from art 3 of the Athens Convention 1974 is incorporated in domestic law by operation of the MLA.

Ms Oddy's case below was argued principally as a common law negligence or occupiers liability action. Ms Oddy also relied, as a further alternative, on the MLA, arguing it created a presumption of negligence that had not been rebutted. The Judge did not refer to the MLA in his reasons. He treated the case as a common law negligence action, as he had been invited to do by Ms Oddy's counsel.

The factual issue at the heart of this trial was whether Waterway breached the standard of care in selecting Nova Braid for mooring the houseboat. If the Judge made a supportable positive finding that the selection of Nova Braid was reasonable, the issue of the applicability of the MLA is of no moment. This is so because the MLA, if it applies, merely creates a presumption of negligence that may be rebutted by evidence.

Given that the Court is not entitled to interfere with the Judge's conclusion on the standard of care, it is neither necessary nor desirable to comment on whether Ms Oddy's arguments on the application of the MLA and remoteness of damage have any merit.