A former head of the Bermuda Road Safety Council has called on the Supreme Court to overturn a ruling against him regarding a 2019 boating accident.

Dennis Lister III, the Junior Minister of Justice, together with his wife Heather Lister, Mike Moss and Leigherica Jones, launched legal action against Anthony Roach, trading as Somerset Bridge Watersports. The group blamed the company for damages suffered when their rental boat capsized.

However, Mr Roache launched a counterclaim seeking more than $5,000 in damages for the capsized vessel.

In August 2022, magistrate Auralee Cassidy ruled in favour of Mr Roache, finding that Mr Lister had “wilfully and dishonestly” misrepresented his boating experience and was responsible for the losses.

Mr Lister subsequently appealed the decision to the Supreme Court, arguing that the magistrate had made a number of errors, including using the wrong legal yardstick to determine the duty of care owed by the watersports company.

Vaughan Caines, for the appellants, suggested the company was at fault for the rental, telling the court evidence suggested the boat may have been damaged before the incident. He also said that there was a small craft warning in effect that day.

He added: “If he knew or even suspected there was a hole in the hull, he should have checked before he rented out a boat, even under great conditions, but especially under small craft warning conditions that would effect small boats like a 13ft Boston Whaler.”

Magistrates’ Court heard that on August 4, 2019, Mr Lister and his now wife, Heather, rented a Boston Whaler from SBW and were given a specific route to reach Mangrove Bay.

Mr Lister piloted the boat to a nearby family dock, where they were joined by additional passengers, bringing the total on the four-person boat to five.

However, after departing the dock they ran into difficulties and capsized, causing them to lose some personal items.

Mr Lister said that after the incident, he spoke with Mr Roache who told him that the boat “may have” struck a reef the day before.

Mr Lister, together with his wife and Mr Moss and Ms Jones, filed a writ seeking $9,075 in compensation for loss and damage caused by the capsizing, which they blamed on “inclement weather, lack of seaworthiness and incompetent vessel”.

However, Mr Roache, who owned SBW at the time of the incident, filed a counterclaim seeking $5,099,99 in damages, disputing the claim that the boat was not seaworthy.

After a trial, magistrate Auralee Cassidy found in favour of Mr Roache, stating she was satisfied on the balance of probabilities that he had taken reasonable steps to ensure renters were able to operate the boats in a safe manner by having place-specific protocols in place and giving directions based on weather conditions.

She also found that Mr Lister “wilfully and dishonestly misrepresented himself and his boating capabilities”, causing loss to himself and his passengers.

Ms Cassidy said Mr Lister had “failed to follow the map direction of the defendant and his staff”, and ruled that the claimed losses were “directly caused by his own negligence and failure to exercise due care”.

However, at the hearing in the Supreme Court, Mr Caines said the magistrate had made several errors of law in the judgment.

He said that Ms Cassidy had collapsed two important legal questions — if the boat was defective when it was handed over and what caused the boat to capsize — into a single answer and found that a wave had caused the boat to flip.

Mr Caines said: “That does not work as a matter of logic and it doesn’t work as a matter of law. A defective boat can be flipped by a wave. A defective boat is more likely to be flipped by a wave.”

He also argued that while Mr Roache gave evidence in the trial, his cross-examination was halted for health reasons before more contentious elements of the case could be put to him.

While the magistrate wrote that she would give preference for Mr Roache’s written statement and give little to no weight to areas where there was a conflict with other evidence, Mr Caines argued that the decision left his clients in an unfair position.

Mr Caines also said that Ms Cassidy’s judgment provided no distinction between Mrs Lister, who had signed a waiver for the rental of the boat, and the other three appellants who did not.

The appeal is set to continue this week.

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