The Ontario Superior Court of Justice recently awarded
damages of over $200,000 against a municipality for a trip and fall
accident on a sidewalk and applied 50% reduction for the
plaintiff's own contributory negligence.
On November 25, 2009, the plaintiff, a 29 year old hairdresser,
was walking from the salon where she worked to the drug store when
she stubbed her toe on a difference in elevation between two
sidewalk slabs. She took about five steps forward and fell onto her
right arm, sustaining a right upper arm fracture and a full
thickness tear of the rotator cuff. She commenced an action against
the County of Haldimand (the "County").
The Court first considered whether a condition of non-repair
existed, noting that pedestrians should not expect a perfectly flat
sidewalk surface. Not every difference in elevation between two
sidewalk slabs would necessarily be a condition of non-repair.
However, the Court identified some bench marks as to when
differences in elevation become conditions of non-repair for which
a municipality could be liable. The Court cited cases referring to
the "judicial rule of thumb" that a variance of
three-quarters of an inch could constitute non-repair. Once a
plaintiff establishes a condition of non-repair, then a
municipality may escape liability by demonstrating that it
exercised proper care and diligence in the inspection and
maintenance of the sidewalk. The Court cautioned that areas of high
pedestrian traffic, like the location of the plaintiff's fall,
require greater vigilance on the part of municipalities than less
In this case, the Court found that the difference in elevation
which caused the plaintiff's fall was in all likelihood between
three-quarters of an inch to one and one-quarter inches. This was
more than a minor trip ledge, and it constituted a state of
disrepair. The Court then considered what steps the County took to
inspect and maintain the sidewalk. The County had an annual
sidewalk inspection performed by County staff or college students
whereby they identified differences in elevation and placed
anything exceeding one-half inch on a repair list, with the most
serious ones exceeding one inch to be repaired "as soon as
practical." The Court was not critical of the County's
policy. That said, the Court concluded that, in its 2009
inspection, the County either failed to recognize the hazard or,
recognizing it, failed to act with reasonable dispatch in repairing
The Court found that the plaintiff was also responsible for her
accident. She did not pay enough attention to where she was
walking, and the difference in elevation was there to be seen.
Accordingly, the plaintiff and the County were each 50% liable for
The total damages award was $215,530 before applying the 50%
reduction. The plaintiff's general damages were assessed at
$50,000 on a 100% basis. The rotator cuff tear caused significant
discomfort and disability, limiting her ability to contribute to
homemaking, housekeeping and outdoor maintenance tasks. The Court
also awarded $144,530 for future care costs which included
$16,697.24 for physiotherapy until the age of 60, $75,735 for
housekeeping until the age of 70, and $50,114.18 for gardening,
window cleaning and curtain washing until the age of 70. The
plaintiff was also awarded $9,000 for past income loss and $12,000
for loss of future income.
Under B.C.'s former and current Limitation Act, the limitation period for a Plaintiff's claim can be extended on the basis of a Defendant having acknowledged in writing some liability for the cause of action.
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