COURT FILE NO.:  S1580/00

County of Middlesex

DATE: July 22, 2004 

 

 

ONTARIO

 

SUPERIOR COURT OF JUSTICE

 

 

B E T W E E N:	)
	)
KATE DALLY	) ) )	Donald J. C. Elliott, counsel for the Plaintiff
	)
Plaintiff	)
	)
- and -	)
	)
	)
THE CORPORATION OF THE CITY OF LONDON and UNIVERSITY OF WESTERN ONTARIO	) ) )	Geoffrey P. Belch, counsel for the Defendants
	)
Defendants	) )
	)
	)	HEARD:  May 17, 19 and 20, 2004

 

 

MISENER, J.:

 

 

 

[1]          The City of London maintains, for recreational purposes, a strip of asphalt about two and one-half meters wide and about 22 kilometers in length, that, for the most part, runs along the banks of the Thames River.  It is known by a number of names.  I shall refer to it as The Pathway because that seems to be the most popular one.  On Saturday morning, August 12, 2000, Ms. Dally  went roller blading (also called in line skating) along The Pathway.  In the course of her journey she encountered an area where silt, sand, gravel, and vegetable matter was scattered over the asphalt surface, and, in attempting to negotiate her way over it, she fell and fractured her right wrist.  She brings this action against the City of London and the University of Western Ontario (the owner of the relevant area of The Pathway) for the damages she has suffered as a consequence, alleging that they failed to take reasonable care to make The Pathway safe for the purposes for which it was intended.

[2]          There is not particular dispute about the primary facts, and so I propose to simply state them, together with the inferences that I think should be drawn from them, without any necessary reference to their sources in the evidence.

[3]          The evidence did not indicate the year in which the construction of The Pathway began, but it would seem that it has been a continuing process over a number of years.  Since at least 1999, it has consisted of three branches.  The main branch begins at the west end of Springbank Park in west London, and proceeds continuously in an easterly direction along the south bank of the Thames River to the southeast corner of Labatt Park, a distance of about seven kilometers.  The river divides at that point (called the Forks of the Thames) and The Pathway divides as well.  The south branch of The Pathway runs in a southeasterly direction along the north – northeast bank of the south branch of the river to its southeast terminus at Gore Road for a distance of at least another seven kilometers.

[4]          The north branch of the river begins its northerly journey through Labatt Park on the west and Harris Park on the east, and the north branch of The Pathway proceeds along the east bank  of the river to a point near the east boundary of the University of Western Ontario grounds, a distance of perhaps four kilometers.  But it is not continuous over that route.  Rather it is broken at a point just north of Gibbons Park, very close to the south edge of the University grounds.  At that point the user is required to travel along a city street for approximately 500 meters.  The Pathway then begins again, continuing without further break first northerly and then westerly along the river bank, under the University Drive bridge, and then in a northeasterly direction to its northern terminus. 

[5]          The stretch from the point of its recommencement to the University Avenue bridge runs through lands owned by the University of Western Ontario.  That stretch is about 80 meters in length, and this is the area where Ms. Dally fell.

[6]          This approximate 80 meter stretch is well depicted generally in a number of photographs that have been filed as exhibits, and its nature and condition on the day of the fall is shown in those taken on the next day (August 13, 2000) and filed as part of Exhibit #1.  Immediately on its recommencement, The Pathway proceeds in a straight and level fashion for about 45 meters.  At that point, distinctively marked by a manhole cover, it begins to bend sharply to the left at about 50 degrees, forming an angle in The Pathway of about 140 degrees, and then immediately declines in a westerly direction rather sharply over a distance of about 30 meters.  The decline ends essentially at a point where The Pathway again bends sharply – this time to the right – and it then passes under the University Avenue bridge.  Ms. Dally fell as she was skating down the decline, and she came to rest on the south – southwest shoulder near the end of the second curve and just before reaching the underpass of the bridge.

[7]          I indicated at the outset that The Pathway was constructed for and intended for the recreational pleasure of the general citizenry.  As I understand it, its official name is The Thames Valley Parkway.  It is also referred to in the by-law that authorized its extension through the University lands (the area where Ms. Dally fell) as a “paved fitness trail”, and the City of London advertises it and indeed solicits its use for precisely that.  It publishes a map called “London’s Bike Map” (a copy is filed as Exhibit #3) that shows the location of the whole of The Pathway along with other areas and routes in the city intended for recreational purposes.  The map outlines the rules to be followed in using The Pathway, and in particular it authorizes its use by pedestrians, joggers, inline skaters, and bicyclists. 

[8]          The map (Exhibit #3) portrays the overall nature of The Pathway in a much better fashion than I can describe it, but I think I should attempt a general description nevertheless.  It runs, as I have said, along the banks of the Thames River for the most part, and so, like the river, it meanders through the city.  The vast bulk of it lies within the flood plain, and so not at all in proximity to buildings or structures of any kind.  Some of it runs through areas that are actually maintained as public parks, and a good deal of it runs through natural areas where trees surround it, and undergrowth threatens to encroach upon it.  It is, I think, reasonably apt to say that much of it runs through as natural an area as you could expect to find in an urban community in Southern Ontario.

[9]          Ms. Dally is now 43 years of age – she was born September 18, 1960.  Her appearance confirms her testimony that she has been very active in a variety of sporting activities throughout her adult life.  She had been employed for some considerable time prior to her fall as the Director of Sales and Marketing for a London based business, and she lived on Ridout Street in London near its intersection with Kent Street and about two blocks east of Harris Park.

[10]      Ms. Dally took up roller blading in about 1995, and she engaged in it on a regular basis up to the time of her fall, and on many of those occasions along some part of The Pathway.  She rightly considered herself to be  reasonably experienced and reasonably proficient in that pastime.

[11]      In the mid morning of Saturday, August 12, 2000, Ms. Dally decided to do some roller blading alone along The Pathway.  For some reason she decided to dispense with the usual safety equipment.  She decided not to wear her helmet, her knee pads, or her elbow pads.  She thought it sufficient to wear only her wrist guards.  She entered onto The Pathway at Harris Park.  In the past she had skated only on the main branch or the south branch.  She decided on this occasion to explore the north branch, and so she skated north toward Gibbons Park and on past it to the point where The Pathway was interrupted.  She then continued on down the public street some 500 meters to the point where The Pathway recommenced, and then continued along The Pathway for the short distance to the point where she fell.

[12]      A description of the manner of her fall and the reasons for it must begin with a detailed description of the condition of The Pathway as Ms. Dally found it in that approximate 80 meters from its recommencement to the University Drive bridge. 

[13]      The condition of the approximate 45 meters of The Pathway from its recommencement to the manhole cover is best shown in the photographs marked as 2(b) and 2(c) in Tab 6 of Exhibit #1.  The west half (throughout The Pathway is divided by a solid yellow center line) was covered with debris of some sort, with about one-half of it rendered impassible or nearly so by encroaching tree limbs and overgrowth.  Mr. Michael Carnegie, the Park Supervisor responsible for the maintenance of The Pathway in 2000, testified that the overgrowth ought to have been cut back, and both Mr. Donato Cordelli and Ms. Victoria Wilson, the two city employees designated to maintain The Pathway in 2000, testified that its condition in that area was unsatisfactory and unacceptable.  However, none of that caused Ms. Dally any difficulty because the east half – the half designated for her direction of travel – was essentially free of debris and not in least obstructed.

[14]      The debris began to invade the east half of The Pathway at about the manhole cover, and it became randomly scattered over the whole of it at the very beginning of the curve, so that its presence, in at least some quantity, in her lane of travel was clearly visible to Ms. Dally before she actually began her descent.  All of that is best shown in the photograph marked as 2(d) in Exhibit #1.

[15]      The condition of the decline itself is shown in the photographs marked as 2(e) and 2(f) in Exhibit #1.  They show a significant amount of debris – sand, salt, gravel and vegetable matter – covering about one-quarter of The Pathway from each of its edges, with intermittent patches of debris in the remaining center half.

[16]      Generally there is a tendency for debris of this sort to accumulate to some degree on significant portions of The Pathway from wind, rain and runoff because, as I have said, much of The Pathway runs through the flood plain and through natural areas where there is significant vegetation.  The area of the decline in question, however, is particularly prone because the lay of the land creates a very high risk of runoff.  On Wednesday, August 9, just three days before Ms. Dally’s fall, 44.4 millimeters of rain fell in the City of London.  There is no evidence as to the period of time over which it fell on that day.  However, it would appear from Ms. Wilson’s diary (Exhibit #2, Tab 19) that she worked outside that day until 3:00 p.m. and Mr. Cordelli expressed the view that he would have expected a runoff over The Pathway in this area as a consequence of it.  I am satisfied therefore that it was indeed the rainfall on that day that brought most of the debris that confronted Ms. Dally onto it.

[17]      Both Mr. Cordelli and Ms. Wilson testified that if an inspection had revealed that quantity of debris, then the decline would have been swept.  And Mr. Keith Gare, an expert in line skating, testified that a quantity of debris of that sort would compel a skater to proceed at a very slow speed – a casual walking pace or slower – in order to safely negotiate it.

[18]      Ms. Dally became aware of the randomly scattered debris as she approached the manhole cover, and of the continuation of it into the curve to her left.  She was therefore in a position to stop her forward journey before she actually began the descent, and to turn back.  While the quantity of the debris that she was able to see concerned her, she nevertheless concluded that if she proceeded carefully she would be able to safely negotiate the decline and continue on her journey under the University Avenue bridge.  She applied her brake on her right skate and reduced her speed to a fast walk.  She then directed her attention to steering around the more significant accumulations of debris while at the same time attempting to reduce her speed or at least to keep it constant through the continued application of her brake.  It seemed to her, however, that she was unable to do either of those things.  She felt she was losing control as she descended, and in her now heightened concern about being able to continue to avoid the debris, she failed to see a slender stick or branch about 75 centimeters in length in her path.  The stick lodged in the braking mechanism of her right skate and she fell. 

[19]      I think it right to say that from its inception the City of London recognized a civic obligation to attempt to maintain The Pathway in a reasonably safe state for the uses for which it was intended.  The general policy in place in 2000 was this.  Although they performed other tasks in the maintenance of public areas in the City, Mr. Michael Carnegie was particularly charged with the responsibility for seeing that The Pathway was maintained, and Mr. Donato Cordelli and Ms. Victoria Wilson were assigned to carry out  the inspections of it and to see to its actual maintenance.

[20]      Three complete inspections were conducted each year for the purpose of determining the condition of the asphalt, of any bridges that formed part of it, of any railings erected along it for safety purposes, of  the gabion baskets used in various places to control erosion, and the safety of it generally.  The first inspection was in early spring; the next one was in mid-summer – July or early August; and the last in the early fall – late September or October.  The Pathway was swept in its entirety by means of a motorized sweeper as part of each of these inspections – a process that consumed the best part of three days on each occasion.

[21]      A written record was kept of the results of these inspections and of any remedial measures to be taken, and the area of the fall is described in these records as “Ross Park to University”.

[22]      In addition to these three general inspections, further inspections of discrete areas were undertaken from time to time, and remedial measures taken if it was thought advisable to do so.

[23]      The City maintained and widely advertised a procedure for users of The Pathway to report any problems that they encountered, and it established  the technology to ensure that any such reports were promptly brought to Mr. Carnegie’s attention so that remedial action could be taken without delay.

[24]      The spring general inspection – and with it the first general sweeping – in 2000 took place on March 22, 23 and 24 (Exhibit #13) with the sweeping of the “Ross Park to University” actually being done on March 23.  For some reason there was another inspection of the “Ross Park to University” area on April 12, 2000, but there is no indication in the record as to whether it was swept again on that date (Exhibit #2, Tab 6).  On June 7, 8 and 9 there were inspections of seven discrete areas including the “Ross Park to University” area, and a notation was made on the report that “Ross Park to University” needed to be swept again.  There is every reason to think that that recommendation was carried out with reasonable dispatch.

[25]      The summer general inspection, and with it the second general sweeping, began on Thursday, July 13, and the “Ross Park to University” area was actually swept on that day.  I am satisfied that the intention was to complete the summer inspection and the summer sweeping on Monday, July 17.  However, an extraordinary rainfall – a 100 year storm – occurred either on that weekend or on July 17 itself, and some two to six inches of silt was washed onto The Pathway in the area where the fall occurred, and the area was swept again.

[26]      There were no further inspections of the “Ross Park to University” area between that last sweeping – the sweeping on or about July 17 – and the time of Ms. Dally’s fall.

[27]      Except for some mild bruising to her neck and back, Ms. Dally’s only injury was a comminuted fracture of the distal radius of her right wrist.  She was taken by ambulance to St. Joseph’s Health Care Centre in London, arriving there at about 12:35 p.m.  The fracture was treated by means of closed reduction and the wrist immobilized with a below elbow cast.  She was discharged from hospital at about 3:40 p.m. on the same day.

[28]      The wrist remained immobilized in cast for about six weeks.  She was then instructed to take physiotherapy treatments and to wear a splint.  She continued with regular physiotherapy for about three months.  She was able to return to her employment about two weeks after the fall notwithstanding the significant pain and discomfort that she continued to suffer.

[29]      While the independent evidence is not as complete as it might be, I accept Ms. Dally’s testimony that she continues to suffer discomfort in her right wrist on a near continuous basis.  She is right handed.  The discomfort is of the nuisance variety with normal use.  It becomes significant however with more strenuous activity.  It is not a case therefore of being unable to do the things that she did before.  Rather it is a case of being unable to do those things with anything like the intensity with which she formerly engaged in them.  There is nothing in the evidence to indicate any worsening of her condition and there is nothing to indicate that it will become any better.

[30]      It is agreed that Ms. Dally incurred out of pocket expenses in the sum of $2,888.82.

[31]      I am now in a position to address the issues that arise from these facts. 

[32]      It is surely clear that Ms. Dally failed to take reasonable care for her own safety, and equally clear that her failure contributed to the cause of her fall.  Mr. Elliott readily acknowledges all of that.

[33]      I do not fault her for electing to proceed down the decline.  Her failure to wear proper safety equipment has no causal connection with the fall or the injury that she suffered as a consequence.  I do, however, fault her for her judgment.  She was in a position to at least judge the potential extent of the debris and the potential danger it posed before she began the decline.  Her own experience dictated that, if she chose to proceed, then an abundance of caution was required.  She consciously chose nevertheless to proceed at a speed significantly greater than the risk dictated, and indeed that Mr. Gare said was required.  The result was a loss of control or at least a perception and a preoccupation with the fear of a loss of control, and a consequent failure to direct her attention to what would otherwise have been obvious to her – the presence of the stick ahead.

[34]      Apart from all of that, and notwithstanding her speed and her concern, she ought to have seen the stick ahead in sufficient time to avoid it.

[35]      The difficult question is whether either of the defendants should bear part of the legal responsibility as well.  I can easily dispose of the claim against the University of Western Ontario.  Both counsel agree that that claim should be dismissed without costs.  In view of that position it is unnecessary for me to justify the dismissal.  It does seem to me, however, that the proper basis for it is that, in its capacity as the owner of the lands in the relevant area, the University simply owed no duty of care to the users of The Pathway that the City of London had constructed and that the City of London occupied, quite apart from the fact that the City contractually undertook with the University to maintain it and to save the University harmless from any liability that might arise from its use.

[36]      The claim against the City of London is however a different matter.  Mr. Elliott submits that the City owed a statutory duty, by virtue of Subsection 3(1) of the Occupier’s Liability Act RSO (1990) Chapter 0.2 (The Act) to take reasonable care to see that The Pathway was safe for the uses for which it was intended, that it failed to do so, and that its failure contributed to the cause of Ms. Dally’s fall and consequent injury.

[37]      On the other hand, Mr. Belch submits that, assuming that Subsection 3(1) of  The Act does impose such a duty, the City, in all the circumstances of the case, fulfilled that duty.  Alternatively, Mr. Belch submits that Subsection 3(1) of The Act has no application in these circumstances.  Rather he submits that, by virtue of Section 4 of The Act, Ms. Dally must be held, in law, to have willingly assumed all of the risks arising from the use of The Pathway, and that, absent proof of reckless disregard on the part of the City – something not in the least alleged – the City owed no duty of care to reasonably provide for her safety.

[38]       It is appropriate therefore to begin my disposition of the claim against the City of London by setting out the relevant provisions of The Act.  

Section 2 – Subject to section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons. 

Sub-section 3(1) - An occupier of premises owes a duty to take such care as in all of the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises. 

Sub-section 4(1) – The duty of care provided for in sub-section 3(1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property. 

Sub-section 4(3) – a person who enters premises described in sub-section (4) shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in sub-section (1), …

(c)  where the entry is for the purpose of a recreational activity and,

(i)                  no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or a non-profit recreation club or association, and,

(ii)               the person is not being provided with living accommodation by the occupier. 

Sub-section 4 (4) - The premises referred to in sub-section (3) are,

(a)   a rural premises that is,

(i)                  used for agricultural purposes, including land under cultivation, orchards, pastures, woodlots and farm ponds,

(ii)               vacant or undeveloped premises,

(iii)               forested or wilderness premises;

(b)   golf courses when not open for playing;

(c)   utility rights of way and corridors, excluding structures located therein;

(d)   unopened road allowances;

(e)   private roads reasonably marked by notices such; and

(f)     recreational trails reasonably marked by notice as such.

Sub-section 9(3) – The Negligence Act applies with respect to causes of action to which this Act applies.

[39]      I do not agree with Mr. Belch’s first submission.  Assuming that sub-section 3(1) applies, as Mr. Elliott submits, then I am satisfied that the City of London failed to discharge the duty that it imposed.  That duty was a positive one to take such care as was reasonable in all of the circumstances to ensure the safety of those who use the pathway for the recreational purposes for which it was intended.  Roller blading or inline skating was one of those intended purposes and indeed an invited pursuit.  Those in charge of The Pathway knew or certainly should have known of the high risk of falling in the course of its pursuit, and therefore the danger the debris on The Pathway presented.  They knew as well that the short stretch in question was one particularly prone to runoff and to an excessive accumulation of debris on the asphalt surface.  The extraordinary rainfall of on or about July 17 had resulted in a good deal of erosion in this stretch and in a very large accumulation of debris.  While the rainfall of Wednesday, August 9 was not an extraordinary one, it was nevertheless the kind that usually occurs only once or twice in July or August of each year, and the kind that results as well in considerable erosion.  The area in question should have been inspected on the following Thursday or Friday and, if sweeping could not be undertaken before Friday was out, then the area could have been closed temporarily, or if not that, at least signs posted to clearly warn of the extreme danger that the condition of the slope presented.  My assessment of Ms. Dally certainly satisfies me that, had the danger been at least emphasized in the manner I have suggested, Ms. Dally would not have continued on, or, if she chose to do so, she would have proceeded with the care that Mr. Gare said was required in order to negotiate the decline successfully.

[40]      Notwithstanding his pleading, Mr. Belch did not suggest in argument that I should find that Ms. Dally, by her conduct, willingly assumed the risk of falling and injuring herself, thereby abrogating the duty of reasonable care through the operation of Section 4(1) of The Act.  Accordingly, on the assumption that sub-section 3(1) does indeed impose that duty upon it, the City of London must share the legal responsibility for Ms. Dally’s fall and her consequent injury.  I would attribute 60% of that responsibility to Ms. Dally and so, 40% to the City of London.

[41]      Mr. Belch’s alternative submission is entirely dependent on The Pathway being a recreational trail within the meaning of sub-section 4(4)(f) of The Act.

[42]      Counsel were unable to provide me with any cases in which sub-section 4(4)(f) has been considered.  There is, however, one such case of which I am aware, although I am not at all sure that it is of much assistance.

[43]      In Maloney v. Parry Sound (2000) 2000 CanLII 5618 (ON CA), 184 DLR (4^th) 121, the Ontario Court of Appeal considered whether or not a fitness path maintained by the Town of Parry Sound was a recreational trail within the meaning of the sub-section.  The judgment of the court, in its relevant part, reads as follows:

The appellant (the defendant town) contends that the accident occurred on a “recreational trail” and the trial judge erred in failing to determine liability under section 4(1) of the Occupier’s Liability Act.  The accident occurred on a paved roadway used regularly by cars for access to and egress from a parking lot.  The roadway was also part of the fitness path established and maintained by the appellant.  We agree with the trial judge that the regular use of the roadway by vehicles precluded the application of section 4 of The Act to this part of the fitness path.  This part of the path was also a roadway used regularly for vehicular traffic.  It was more than a “recreational trail”.

[44]      For my part, I am bound to say that the ordinary Canadian would consider The Pathway a trail, and the area of the fall as part of it, and so I should do so as well.  It was designed for pedestrian use and not as a roadway.  Indeed, concrete posts prevent its use by motor vehicles.  It runs for a very long distance, at least in a relative sense.  Although there is one brief interruption, it runs essentially continuously over the full distance I have described.  More importantly, it was not designed to permit the efficient movement from one place to another, but rather, just as the verb “to trail” connotes, it wanders aimlessly, as the river wanders aimlessly, through the City, and, for the most part, it runs through the few remaining natural areas of the City, as far removed as possible from its density.  To my mind, those are the ingredients of a trail, and indeed its most appropriate description is that found in the by-law to which I earlier referred – “a paved fitness trail”.

[45]      Accordingly, I am obliged to declare that sub-section 4(3) of The Act relieved the City of London from any duty to take the reasonable care required by sub-section 3(1) in maintaining The Pathway at the relevant time and imposed upon Ms. Dally as a matter of law, the burden of assuming all of the risks arising from its use.  Since it is not suggested – nor could it be – that the City created a danger with the deliberate intent of harming users of The Pathway, or that it acted with reckless disregard for their safety, Ms. Dally is, by the expressed terms of The Act, denied any recovery for her injury.  Her action must therefore be dismissed.

[46]      I assess Ms. Dally’s non-pecuniary general damages at $25,000.00.  No pecuniary general damages are claimed.  Accordingly, the total damages are assessed at $27,888.82.

[47]      In the circumstances, and particularly because this appears to be a case of first impression in the application of sub-section 4(3) and 4(4) of The Act, there will be no costs.

 

___________________________

Justice C. C. Misener

 

 

Released:       July 22, 2004

 

COURT FILE NO.:  S1580/00

County of Middlesex

DATE:  July 22, 2004 

 

ONTARIO   SUPERIOR COURT OF JUSTICE     B E T W E E N:   KATE DALLY   Plaintiff   -         and –     THE CORPORATION OF THE CITY OF LONDON and UNIVERSITY OF WESTERN ONTARIO                                                                  Defendants     REASONS FOR JUDGMENT         MISENER, J.

 

Released:       July 22, 2004