This is not a splash zone! Swim Safe!
It’s summer, and what better way to enjoy the sun than to take a dip in a pool. Maybe going to a water park sounds even more enticing to you and your family. Everybody has an expectation to swim safely and avoid any catastrophes but what does the law have to say about pool safety and regulations?
You may be surprised to learn that the law that governs pools is more complex than it may seem. The primary statute under which many pools are governed is the Health Protection and Promotion Act (HPPA), and specifically the Public Pools section. This act distinguishes between the various types of pools that operate around the province. Class A pools encompass public pools and pools found at recreational camps. Class B pools encompass pools that are found at multi-unit residences. This includes apartment and condominium complexes but also hotel pools and country club pools.
Pools at water parks would not fall under either class, neither would pools owned by individual homeowners. These pools would fall under the Occupiers’ Liability Act like any other business attended by patrons.
Under HPPA in section 17, it stipulates the safety procedures that must be in place when a pool under Class A or B is being operated, including the number of lifeguards that must be on duty, proportionate to the number of attendees/users of the pool. For example, there must be 1 lifeguard for up to 30 users, 2 lifeguards for 31-125 users, and so on.
Section 17 also states that lifeguards must have received the proper training and certification, wear appropriate clothing, and be at least 15 years old. The Public Pools section also covers sanitation procedures and safety objects that must be available such as reaching poles and life preservers.
Class B pools have less stringent obligations depending on the size of the pool and how frequently it is used. Depending on the circumstances, Class B pools may be permitted to post a warning sign advising users that the pool is unsupervised and to use with caution.
As for water parks, should an injury occur in the water, the court will look closely at all the facts and especially focus in on Section 3 of the Occupiers’ Liability Act to determine if the duty of care that was present at the time of the accident was breached. In other words, did the water park take all necessary safety measures to prevent harm to its guests?
Did the water park ensure they had certified lifeguards on duty?
Did the park provide safe exits for its guests if they wanted to evacuate?
We all know how chaotic wave pools can be, especially if they are crowded.
Were guests offered floatation devices such as innertubes?
Did guests have the option of wearing life jackets?
These are all factors the courts will consider should a serious injury or a drowning occur. What might absolve the park of liability is voluntary assumption of risk, which is a type of contributory negligence. If a guest engages in incredibly risky horseplay or carelessness that leads to their own bodily harm, then the court may see them as being responsible for their own undoing.
In the 2003 case of Hutchinson v. Daredevil Park Inc., the court found that the water park did, in fact, breach their duty of care by not providing proper instructions on how to use the water slide and a lack of signage.
While the good news is that the number of lawsuits against water parks for personal injury claims is relatively small in Ontario, it is always important to exercise extreme caution when attending any water park or swimming pool. Enjoy the water and swim safely!
If you or someone you know has injured yourself in a swimming pool or water park, contact us. We are here to help with over 50 years of experience in personal injury litigation.
