Standard of Care A Comparative Case Study. Colleen Sinclair City of Calgary Law Department

Transcription

1 Standard of Care A Comparative Case Study Colleen Sinclair City of Calgary Law Department

2 Occupiers Liability Act Duty of Care to Visitors 5. An occupier of premises owes a duty to every visitor on the occupier s premises to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the occupier to be there or is permitted by the law to be there. BC, Alberta, Manitoba, Ontario, Nova Scotia, PEI

3 Christensen v Calgary Three actions commenced by three separately injured Plaintiffs on one section of paved pathway Second Plaintiff dropped d claim prior to trial First and third Plaintiff went to trial in June of 2010

4

5 Christensen Claim May 12, 2002 rollerblading accident Struck bridge railing at base of hill Only one sign at top of hill

6 Christensen Claim May 12, 2002 rollerblading accident Plaintiff struck bridge railing at base of hill One bike on hill sign at top of hill

7 Gaston Claim August 28, 2002 rollerblading accident Struck upright metal pole, part of handrail system Had multiple warning signs including 2 directed at in- line skaters

8

9 Plaintiffs Evidence No design or engineering evidence led Only expert was an expert in in-line skating Even he said Plaintiffs could have navigated hill if not for on-coming traffic No evidence of reasonable standard for designing pathways for use by in-line skaters

10 City s Evidence Pathway renovated the year before the accidents No design guidelines or standards d exist for pathways used by in-line skaters Pathway was located in specially protected environmental area therefore limits on renovations Pathway was as safe as possible in the circumstances

11 Trial Judge s Findings City failed to consult with the in-line skating community when renovating in 2001; City failed to properly research design guidelines or, if none existed, to formulate their own; City did not reasonably consider the needs of in-line skaters when renovating in 2001; City did not place adequate signage warning of the steep hill about to confront users of the pathway.

12 Trial Judge s Findings The Plaintiffs bore no onus of establishing what would make a safe pathway N di i fh fth 4i d ti No discussion of how any of the 4 impugned actions was causally related to the Plaintiffs injuries

13 Court of Appeal Findings Majority The evidence at trial reveals the City s knowledge that the pathway was increasingly being used by inline skaters. No evidence was proffered to demonstrate that the City took account of their safety in designing the pathway. The City gave evidence that to change the hill in question would be prohibitively expensive and unlikely to be approved because of the environmental sensitivities of the area.

14 Court of Appeal Findings Majority No evidence showed the City considered other options such as removal of trees for better sight lines, the use of alternate materials for the bridge and fences or, for that matter, the outright prohibition of in-line skating on the pathway.

15 Court of Appeal Findings Dissent (Referring to the quote above) It seems to me that the effect of the majority s decision in this case is to reverse the onus shifting it from the respondents (plaintiffs) to establish liability onto the appellant to disprove its liability. Similarly, the trial judge had reversed the onus from the respondents (plaintiffs) to the appellant (defendant).

16 Court of Appeal Findings Majority There is, on this record, ample evidence to establish the requisite causal connection between the City s deficient conduct and the Respondents injuries.

17 Court of Appeal Findings Dissent Looked for causal connection: 1. Consultation with in-line skating community 2. Researching design guidelines 3. Consideration of needs of in-line skaters 4. Adequate signage Plaintiffs iff failed on all four counts

18 Supreme Court of Canada Refused Leave to Appeal April 5, 2012

19 Occupiers Liability Act Recreational Users 6.1(1) The liability of an occupier to a person who uses the premises described in subsection (2) or a portion of them for a recreational purpose shall be determined as if the person was a trespasser unless the occupier (a) receives payment for the entry or activity of the person, (b) is providing the person with living accommodation on the premises.

20 Occupiers Liability Act (2) Subsection (1) applies to the following: (a) rural premises (b) golf courses when not open for playing; (c) utility rights-of-way excluding the structures located on them; (d) recreational trails reasonably marked as such.

21 Occupiers Liability Act Liability of Occupier to Trespassers 12(1) Subject to subsection (2) and to section 13, an occupier does not owe a duty of care to a trespasser on the occupier s premises. (2) An occupier is liable to a trespasser for damages for death of or injury to the trespasser that results from the occupier s wilful or reckless conduct. Section 13 deals with Child Trespassers

22 Comparison Cases Roscoe v Halifax NSSC, 2011 duct tape on gym floor causes injury to badminton player expert evidence from engineer regarding floor friction reasonable standard was to sweep/inspect between renters of gym failure to comply pywith standard by occupier

23 Comparison Cases Herbert v Brantford Ont. C.A., 2012 Cyclist rendered quadriplegic after falling off edge of paved pathway Expert evidence of design standards for pathway Trial judge found pavement not in good condition and lack of any shoulder was breach of standard Plaintiff found contributorily negligent due to speed Split liability 60% Plaintiff, 40% Municipality

24 Questions? Colleen Sinclair City of Calgary Law Department