COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Goudge and LaForme JJ.A.
BETWEEN:
John Trajkovich (Tray), Lottie Tray, Rachel Trajkovich (Tray) and Adrian Tray, a minor by his Litigation Guardian, Lottie Tray
Plaintiffs (Appellants)
and
Her Majesty the Queen in Her Right of the Province of Ontario represented by the Minister of Natural Resources and Attorney General for the Province of Ontario
Defendants (Respondents)
Paul J. Pape and Shantona Chaudhury, for the appellants
Stephen R. Moore and Lauren Hacker, for the respondents
Heard: October 13, 2009
On appeal from the judgment of Justice Blenus Wright of the Superior Court of Justice dated January 27, 2009, with reasons reported at [2009] O.J. No. 315 (S.C.).
Goudge J.A.:
1On August 28, 1999, the appellant, then a healthy 17-year-old boy, went swimming at Pinery Provincial Park (the “Pinery”) at Lake Huron. Standing in three feet of water, he dove in. His head hit either an underwater sand bar or the flat bottom of the lake. Tragically, he broke his neck and was rendered a tetraplegic. He sued the respondents, who are the owners and operators of the park.
2Damages were agreed to, and a trial proceeded on liability alone. The trial judge dismissed the action. He concluded first, that the appellant’s injuries were caused by his own negligence; second, that the appellant failed to prove that he hit his head on a sandbar rather than the bottom of the lake; and third, that in any event the sandbars did not constitute a hazard to swimmers for which the respondents could be held liable under the Occupiers’ Liability Act, R.S.O. 1990 c. O.2.
3For the reasons that follow, I find that the trial judge erred in each of these three conclusions and none can stand. Regrettably, there must be a new trial on liability.
A. THE FACTS
4The appellant began swimming at a very young age. He was a strong swimmer, but had never been swimming in water where there were sandbars. Nor had he ever been to the Pinery before.
5There was a great deal of evidence about the sandbars at the Pinery. There was no dispute that they were numerous and were present from shallow to deep water. They moved constantly from season to season. On a wavy day (and August 28, 1999 was such a day), they are not visible from shore, and once in the water, a person cannot see the sandbars at all. Beyond this, there was contested expert evidence on the maximum height of the sandbars, their shape and slope, and where they might have been located on August 28, 1999.
6The only direct evidence about the way the appellant’s injuries occurred came from the appellant himself. He testified that he was standing in three feet of water, did a shallow dive and struck his head on the sand almost immediately. There is no doubt that the impact broke his neck. He was face down in the water, but before he lost consciousness was able to see that he was floating over a large mound of sand.
7Fortunately, there was a woman nearby who helped rescue him. While she did not see the dive that led to the appellant’s injuries, she had observed the appellant in the few minutes that preceded it. She described him as diving into the waves in a glide or belly flop.
8There were no signs at the Pinery warning swimmers of the danger posed by underwater sandbars. However, a number of Pinery staff testified that they were unaware of any injuries having been caused by these sandbars in the past.
B. THE DECISION AT TRIAL
9The question of factual causation was of fundamental importance in this trial. What caused the appellant’s injuries on August 28, 1999? As the trial judge repeatedly recognized throughout the trial, there were only two possibilities: the appellant hit his head either on a sandbar or on the bottom of the lake.
10However, rather than expressly addressing and resolving this question first, the trial judge began his analysis with the question of the appellant’s own negligence. He found that the appellant was negligent, first, for not being sufficiently aware of the variations in the depth of the water caused by the presence of sandbars; and second, for choosing to dive from a standing position in water that was too shallow and when he could not see the bottom of the lake. The trial judge then concluded that the cause of the appellant’s injuries was the appellant’s own negligence.
11The trial judge then turned to an express consideration of the factual causation issue and concluded that the appellant had not proven that he hit his head on a sandbar rather than the bottom of the lake. The trial judge set out his reasoning as follows at para. 32-33:
Taking into consideration that the plaintiff, prior to the accident said that he had not seen a sand bar or the bottom of the lake and, considering that whatever the plaintiff saw was with his eyes open under water when under water he normally closes his eyes, and considering that whatever he thinks he saw could have been only for a brief period of time since he lost consciousness, there is raised considerable doubt whether the plaintiff’s head hit a sand bar rather than the bottom of the lake. Furthermore, he had his hands out to break the water for his dive and although he says his head hit something immediately he does not remember his hands hitting a sand bar.
Considering all of the evidence as to what the plaintiff’s head hit, I find that the plaintiff has failed to prove on a balance of probabilities that he hit his head on a sand bar rather than the bottom of the lake. The plaintiff’s injuries are consistent with his head hitting a sand bar or the bottom of the lake.
12Lastly, the trial judge considered the question of the respondents’ liability under the Occupiers’ Liability Act. He concluded at paras. 37-39:
Tens of thousands of people have enjoyed swimming off the beaches of Pinery Park over the forty years prior to the plaintiff’s accident. Tens of thousands of people have been swimming in several other Ontario Parks where there are sand bars. There is no evidence that anyone, prior to the plaintiff’s accident, was injured as a result of the presence of sand bars in the water. In my view the fact of no previous or subsequent injuries speaks loudly and clearly that sand bars are not a hazard to swimmers.
I find that it was not foreseeable that after forty years of no injuries caused by sand bars at Pinery Park, an experienced swimmer would attempt a dive from a standing position in shallow water when he could not see the bottom of the lake and did not determine whether he could make a safe dive.
[I] find that the plaintiff has failed to prove that the defendant is liable under The Occupiers’ Liability Act.
C. ANALYSIS
i) The appellant’s negligence
13The appellant challenges each of these conclusions. I will address each in turn.
14The trial judge found that the appellant’s injuries were caused by his own negligence. He was found negligent in two respects. First, the trial judge found that the appellant was insufficiently aware of the presence of sandbars. This insufficient awareness, however, could have caused the appellant’s injuries only if the appellant struck his head on a sandbar. Otherwise, his insufficient awareness of the presence of sandbars could not have contributed to the appellant’s injuries.
15In my view, this basis for finding that the appellant’s negligence caused his own injuries is necessarily based on a finding by the trial judge of factual causation that is fundamentally inconsistent with his later express finding on the same issue, which was that the appellant did not prove that he hit his head on a sandbar rather than the bottom of the lake. The trial judge must have found that the appellant hit a sandbar to conclude that his insufficient awareness of sandbars caused his injuries.
16The same criticism applies, although perhaps not so starkly, to the second way in which the trial judge found the appellant negligent; namely, that he chose to dive from a standing position in water that was too shallow when he could not see the bottom of the lake. The context for this finding is the appellant’s evidence (which the respondent did not challenge) that his dive was a shallow one and the evidence from the appellant’s expert (which the trial judge did not reject) that a shallow dive could be safely done in three feet of water if the bottom was flat.
17As with the first basis for finding the appellant negligent, this finding can be made only if the trial judge concluded that the appellant hit a sandbar. Diving into water that was too shallow could have caused the appellant’s injuries only if he hit a sandbar. Standing in three feet of water, a shallow dive would not have caused the appellant to hit the flat bottom of the lake.
18To summarize, I conclude that the trial judge, in finding the appellant negligent, must have implicitly concluded that the appellant struck his head on a sandbar. However, in dismissing the action, the trial judge also found that he could not decide whether the appellant hit his head on a sandbar rather than the bottom of the lake. It was not open to the trial judge to make both findings. To make such inconsistent findings on the central issue of factual causation is an error of law requiring appellate intervention: see R. v. D.R., 1996 SCC 207, [1996] 2 S.C.R. 291 at para. 50.
ii) Factual causation
19After he dealt with the appellant’s own negligence, the trial judge expressly addressed the question of factual causation and found that the appellant had failed to prove that he hit his head on a sandbar rather than the bottom of the lake. Apart from the fundamental inconsistency between this and the implicit finding on the same issue that necessarily underpins the trial judge’s conclusion of the appellant’s own negligence, it constitutes a palpable and overriding error.
20First, none of the considerations that, in the trial judge’s view, “raised considerable doubt” whether the appellant’s head hit a sandbar rather than the bottom of the lake, in fact lead to that conclusion. They neither make it less likely that he hit a sandbar nor more likely that he hit the bottom of the lake. The trial judge recites these considerations in para. 32 of his reasons, reproduced above.
21The fact that the appellant said he did not see either a sandbar or the bottom of the lake prior to the accident says nothing about which one he hit, particularly since the sandbars were not visible from the water. Nor is the trial judge’s doubt supported by what the appellant saw underwater after impact. If anything, that tends to show that he hit a sandbar. The same is true of the fact that the appellant could have seen the pile of sand only for a brief period of time before losing consciousness. Finally, the trial judge considered the appellant’s evidence that he does not remember his hands hitting a sandbar on his dive. But what the appellant does not remember is of no help in determining whether he hit a sandbar or the bottom. The trial judge used these neutral considerations to draw an unwarranted conclusion that the evidence cannot sustain.
22More significantly, the trial judge appears to have disregarded important relevant evidence in concluding that the appellant had not proven that he hit a sandbar. In particular, the appellant’s evidence was that he did a shallow dive and that his head hit the sand almost immediately. Even the defence expert acknowledged that, in that event, it is more likely than not that the appellant hit a sandbar. Apart from reciting the appellant’s evidence, the trial judge made reference to it only in apparent juxtaposition to the evidence of the nearby woman who described the appellant’s dives just before the accident as a sort of belly flop and therefore likely parallel to the surface of the water. In my view, this would make it even more improbable that he hit the bottom. Nowhere does the trial judge address whether he accepts or rejects this evidence of the appellant, yet it is crucial in determining factual causation.
23Nor does the trial judge address the substantial expert evidence about the prevalence, height, shape and location of the sandbars at the Pinery. This evidence was also important in answering the central factual question; namely, whether it is more likely than not that the appellant hit his head on a sandbar.
24I am therefore of the view that, in reaching his conclusion about the central question of factual causation, the trial judge not only relied on irrelevant considerations but disregarded important relevant evidence that could have been determinative. For these reasons, I conclude that the trial judge’s finding that the appellant did not prove his head hit a sandbar represents palpable and overriding error and must be set aside.
iii) The respondent’s liability
25After deciding the issue of factual causation against the appellant, the trial judge turned to the last issue: the respondents’ liability under the Occupiers’ Liability Act. He concluded that sandbars are not a hazard to swimmers at the Pinery, and therefore imposed no duty on the respondents. He based this conclusion on his finding that these sandbars had never previously caused injury to anyone at the Pinery. However, as the respondents acknowledge, there was no evidence to support this finding. The most that could be said is that none of the Pinery employees who testified knew of any such injuries. Thus, here too, the trial judge’s conclusion rests on a misapprehension of the evidence and must be set aside.
D. CONCLUSION
26The appellant argues that the appropriate remedy in light of these errors is to set aside the judgment below and grant judgment for the amount of the agreed damages. While the errors of the trial judge require that the judgment below be set aside, I would not take the second step sought by the appellant. None of the three issues I have dealt with would be entirely free from doubt at a new trial. While there is considerable evidence to support the appellant’s position that he hit his head on a sandbar, it would be open to a trial judge to find against the appellant on a proper consideration of the record. Equally, the issues of the respondents’ liability under the Occupiers’ Liability Act and the appellant’s contributory negligence are open to more than one conclusion. Therefore, regrettably, there must be a new trial.
27I would allow the appeal and order a new trial. Costs of the appeal to the appellant fixed in the total amount of $50,000. Costs of the first trial are best left to the trial judge at the conclusion of the new trial.
RELEASED: December 18, 2009 (“D.O’C.)
“S.T. Goudge J.A.”
“I agree Dennis O’Connor A.C.J.O.”
“I agree H.S. LaForme J.A.”
