The City of Calgary has imposed a temporary ban on diving from starting blocks.

Eleven of the City run pools will be subject to the diving ban as the City reviews their pools to ensure that they comply with the new depth standards set out by Swimming Canada. This review is not anticipated to be completed until the end of February, 2019.

Beginning on September 1, 2018, Swimming Canada requires a 1.35 metre pool depth below starting blocks and a 1.2 metre depth for dives from pool decks.

These new regulations arose after Miranda Biletski (“Biletski”), 16-years-old at the time, became a quadriplegic when she dove from a starting block at a pool in Regina in June, 2005.

WHAT HAPPENED?

During a Piranhas Swim Club practice, Biletski performed a shallow dive off of starting blocks into the University of Regina (“University”) pool, struck her head on the pool bottom and fractured her spinal cord near the base of her neck. She was left a quadriplegic. The pool area in question was marked 1.22 metres, in accordance with international standards.

At the time of the accident, Biletski was a promising speed swimmer who started attending swim competitions when she was 10-years-old. She also played water polo competitively.

Biletski claimed her injury was caused as a result of the negligence (failure to take proper care resulting in a loss or injury) of the University, and specifically made the following allegations:

• allowing diving from blocks when the pool depth was insufficient to allow safe entry into the water;
• having insufficient water in the pool;
• following a standard that was inadequate to protect competitive swimmers from injury;
• using inappropriate or incorrectly configured diving blocks; and
• failing to inform competitive swimmers of the potential risks.

On the contrary, the University denied that it was negligent. It argued that there was no evidence that there was any problem with the diving blocks or the pool, that the University conformed to all regulations in place, and that there was no evidence that pool maintenance had anything to do with Biletski’s injuries.

The University argued that if it is liable, then Biletski is guilty of contributory negligence for failing to exercise judgment and prudence, and failing to take precautions and assess the water depth.

Today, Biletski has mobility in her arms and shoulders, but has limited use of her hands. She is overcoming any setbacks that her injuries have caused. She even became the first woman on Canada’s wheelchair rugby team. Biletski competed at the World Championships in 2010 and 2014, and competed as a member of Canada’s national wheelchair rugby team in the 2016 Rio Paralympics, where the team came in fourth place.

THE JURY’S DECISION

A six person jury deemed the University negligent for the diving accident. Biletski was awarded more than $9 million for damages, residence modifications, care items, loss of future earnings, and loss of marriage/interdependence benefits.

The damages were itemized by the jury as follows:

• General Damages (pain and suffering, inconvenience, and loss of enjoyment of life) $295,000;
• Personal Residence Modifications  $250,000;
• Costs of Care  $514,584;
• Costs of Future Care  $5,710,000;
• Loss of Future Income and Earning Capacity  $1,512,000; and
• Loss of Marriage/Coupling/Interdependency $879,000.

THE APPLICATION TO THE COURT OF QUEEN’S BENCH

Following the jury’s verdict, the University made an application requesting that the Court of Queen’s Bench set aside the verdict of the jury and substitute a verdict, or in the alternative, declare a mistrial and order a new trial. The University argued that the closing addresses made by Biletski’s lawyer played to the jury’s sympathies and were inflammatory, and that both the verdict as to liability and to damages were perverse.

Justice Ted Zarzeczny of the Regina Court of Queen’s Bench dismissed the University’s application to have the jury’s verdict set aside. He stated:

The jury’s verdict is not perverse but based upon the jury’s view of the evidence, the facts the jury found based upon the evidence and the application of the law as given to the facts as found. The applicant University has not established that a “strong case” of impropriety has been made out based upon counsel’s final submissions to the jury. Nor do I conclude that those submissions as relied upon by the University could reasonably be seen as improperly influencing the jury to render the verdict it did. The jury met and discharged its duty and I am therefore not prepared, nor is it proper for me, to substitute my verdict, either as to liability and/or damages for the verdict of the jury nor to declare a mistrial or order a new trial.

WHAT COMES NEXT?

In January, 2018, the University filed a notice of appeal with the Saskatchewan Court of Appeal. The University asks the court to throw out the judgment, or order a new trial.

The University makes its appeal on the basis that the jury did not consider relevant evidence, improperly assessed the liability of the University in the situation, and awarded “inordinately high” damages to Biletski. Furthermore, the University argues, “[t]hroughout the trial and in their closing address, counsel for Ms. Biletski misstated the evidence, stated facts not in evidence, encouraged the jury to decide the case based on irrelevant circumstances and referred to the resources and ability to pay of the University.”

Cuming & Gillespie LLP will continue to follow Biletski’s case as it makes its way to the Court of Appeal and will provide updates in this blog.

At Cuming & Gillespie LLP, we can help you identify the personal injury compensation types you are entitled to under the law. If you or a loved one have suffered a serious personal injury, you may be entitled to compensation for the damages suffered. Please contact the award winning lawyers at Cuming & Gillespie LLP either online or by calling 403-571-0555. We can get started with a free case evaluation and are dedicated to providing you with the legal help you deserve.