DATE: 20030409
DOCKET: C36318
COURT OF APPEAL FOR ONTARIO
BORINS, MACPHERSON and CRONK JJ.A.
B E T W E E N :
ROBERT IVAN WOODS, BRENDA ROBBINS, BARRY WOODS, TRACEY WOODS, and KATHERINE OWENBY, a minor by her Litigation Guardian Brenda Robbins
Plaintiffs (Respondents)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF NATURAL RESOURCES, THE ST. CLAIR REGION CONSERVATION AUTHORITY, THE CORPORATION OF THE CITY OF SARNIA AND LETHAM LTD.
Defendants (Appellant)
Kirk F. Stevens for the respondents
W. Thomas McGrenere for the appellant
Heard: March 5, 2003
On appeal from the judgment of Justice William A. Jenkins of the Superior Court of Justice dated April 9, 2001, reported at (2001) 145 O.A.C. 185.
MACPHERSON J.A.:
A. INTRODUCTION
[1] The respondent, Robert Woods, was seriously injured when he dove off a groyne[^1] into shallow water on Lake Huron. He fractured his spine and was rendered a partial quadriplegic.
[2] Woods sued the City of Sarnia where the beach is located. Following a twelve day trial, Justice W.A. Jenkins held that both Woods and the city were responsible for Woods’ injuries – Woods because he dove into water without knowing its depth, and the city for failing to post a sign warning of the danger of diving off the groyne. The trial judge apportioned liability between Woods and the city on a 75:25 ratio.
[3] The city appeals from the judgment of the trial judge. It does not take issue with the trial judge’s statement of the governing principles of the law of negligence. However, the city asserts that the trial judge made a crucial factual error which infected his entire judgment.
[4] Woods concedes that the trial judge appears to have misstated a fact. However, he contends that the error is meaningless when viewed in the context of the trial judge’s reasons read as a whole.
[5] The principal issue on the appeal is whether the trial judge’s misstatement of fact amounts to a “palpable and overriding error” warranting the setting aside of his finding of liability on the part of the city: see Stein v. The Ship “Kathy K”, 1975 146 (SCC), [1976] 2 S.C.R. 802 at 808, and Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577 at 584‑91 (S.C.C.).
B. FACTS
(1) The parties and the events
[6] Robert Woods was born in Sarnia. When he was five, his family moved to the United States. Fifteen years later, in September 1991, he moved back to Sarnia with his mother and sisters.
[7] On May 12, 1992, Woods spent the afternoon working in the yard. The day was warm and sunny. In late afternoon, he strolled to the nearby Kathleen Street beach, a public beach in Sarnia.
[8] Woods had never swum in Lake Huron, nor climbed on a groyne. The groyne at the Kathleen Street beach was somewhat dilapidated and rusting. It stretched 72.5 feet into the lake.
[9] Woods climbed onto the groyne and clambered to its end. He could not see the bottom of the lake. Although he was an experienced swimmer and diver – indeed, as a student he had practised with the high school diving team in Phoenix, Arizona – and although he knew that it was dangerous to dive into waters of unknown depth, he nevertheless dove off the groyne into the cold (about 50oF.) water of Lake Huron. Unfortunately, the water was only three to four feet deep. Woods hit his head on the bottom and fractured his spine. He is a partial quadriplegic.
(2) The litigation
[10] Woods, and associated Family Law Act plaintiffs, sued several defendants. The action against all defendants except the City of Sarnia was dismissed on consent before the trial commenced.
[11] The trial judge determined that the Kathleen Street beach and groyne were within the City of Sarnia, which meant that the city was subject to the obligations imposed on occupiers by the Occupiers’ Liability Act, R.S.O. 1990, c. O. 2. Under the heading ‘Liability’, he framed “the initial question” as “whether the defendant, as the occupier of the premises, took such care as in all of the circumstances was reasonable to see that persons were reasonably safe while on its premises.”
[12] The trial judge reviewed two “diving cases”: Kranabetter v. Kelowna (City), (1987), 40 C.C.L.T. 292 (B.C.S.C.), aff’d (1988), 41 M.P.L.R. 195 (C.A.) and Alchimowicz v. Schram, [1997] O.J. No. 135 (Gen. Div.), aff’d (1999), 1999 2655 (ON CA), 116 O.A.C. 287, leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 127. He concluded that “the standard of care that is to be applied in these diving cases . . . requires the occupier to protect against dangers that are sufficiently probable that they should normally be foreseen.”
[13] The trial judge concluded that the city did not meet that standard:
One of the dangers of diving off the groynes is the risk of hitting bottom and suffering a neck injury, as occurred in this case. Since I am satisfied that the defendant knew of that danger and that people were diving off the Kathleen Street groyne, I find that it was negligent in failing to post signs on the groyne warning the public of the danger of diving into shallow water. [Emphasis added.]
[14] Turning to the question of causation, the trial judge defined the issue as “whether a sign or signs would have prevented the plaintiff from diving off the groyne on the day of the accident.” He reviewed Woods’ testimony and the testimony of two experts who discussed the relationship between warning signs and people’s memory and conduct. He concluded:
Research into the effectiveness of warning signs is ongoing. There is no doubt, however, that such signs have some effect. In this case a warning sign may not have prevented the plaintiff from going into the water but if he had been warned of the danger, I accept his evidence that he would not have dived off the end of the groyne. Instead, he may have jumped off the end of the groyne or retreated to the shore and entered the water from the beach. In either case he would have avoided injuring himself. [Emphasis added.]
[15] The trial judge then examined Woods’ conduct on the day in question and determined that Woods was negligent and contributed to his injuries.
[16] The trial judge concluded his reasons by apportioning liability between Woods and the city on a 75:25 ratio.
[17] The City of Sarnia appeals the trial judge’s decision. It seeks an order absolving it of all liability for Woods’ tragic accident.
[18] There are other facts relevant to the disposition of the appeal. I find it convenient to mention them in the context of the specific issues to which they relate.
C. ISSUES
[19] The issues on the appeal are:
(1) Did the trial judge err by concluding that the City of Sarnia was required to post a warning sign at the Kathleen Street beach?
(2) Did the trial judge misapprehend the evidence about the location of the warning signs at another beach in the City of Sarnia, and did that misapprehension lead directly to an unwarranted finding of negligence on the part of the city?
(3) Did the trial judge err by concluding that a warning sign would have been effective in discouraging Woods from diving into the water?
D. ANALYSIS
(1) Was any warning sign required?
[20] The city contends that the trial judge erred by failing to conclude that there was no duty on the city to post any kind of warning sign at the Kathleen Street beach. The city points out that the accident took place on May 12, and that the water temperature was quite cold. The city also submits that, as occupier, it had no duty to warn of a danger which was so obvious that anyone would be aware of it: see Alchimowicz v. Schram (1999), 1999 2655 (ON CA), 116 O.A.C. 287 at 290. Diving into unknown waters (Woods had never been swimming in Lake Huron), the city submits, is obviously dangerous. The city argues that these facts, taken together, establish that the trial judge erred when he concluded that it was foreseeable that Woods might dive into the water off the groyne on May 12, 1992.
[21] I note that the city develops this argument in its factum under the rubric Standard of Care. I agree with this characterization of the issue. In Housen v. Nikolaisen, supra, the Supreme Court of Canada engaged in a comprehensive discussion of the role of appellate courts in reviewing trial judgments in negligence cases. It just so happens that Housen, like the present appeal, was a case dealing with a municipality’s duty to post a warning sign.
[22] With respect to the issue of standard of care, Iacobucci and Major JJ. stated, at p. 596:
[I]t is settled law that the determination of whether or not the standard of care was met by the defendant involves the application of a legal standard to a set of facts, a question of mixed fact and law. This question is subject to a standard of palpable and overriding error unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error of law.
[23] The city does not quarrel with the trial judge’s statement of the applicable standard of care, which accords with the standard set out in s. 3(1) of the Occupiers’ Liability Act and the standard set out by this court in a diving case, Alchimowicz v. Schram. Accordingly, the question is whether the trial judge committed a palpable and overriding error in his appreciation of the facts and in his application of the facts to the correct legal principle that he had formulated. I do not see any such error in the trial judge’s reasons.
[24] The trial judge noted that the Kathleen Street beach was a public breach, adjacent to a road and easily accessible by stairs maintained by the city. The city knew from its experience at a larger public beach at Canatara Park, where lifeguards were engaged, that keeping people off the groynes was a continuous problem. That is why warning signs were posted at that beach, no later than 1991. Moreover, based on the testimony of local residents Susan Woodhouse and Wilfred Beauchamp, the city should have known that many people used the Kathleen Street beach and that teenagers regularly jumped or dove off the groyne into the water. Finally, the trial judge recorded that Mr. Beauchamp testified that he had been in swimming as early as April when the weather was warm. The trial judge observed that on May 12, 1992, it was a warm, sunny day and the lake was calm.
[25] Based on these facts, the trial judge concluded that it was foreseeable that a person might dive off the groyne at the Kathleen Street beach, and that the city was negligent in failing to post warning signs.[^2]
[26] I see no basis for interfering with the trial judge’s conclusion on this issue. He carefully reviewed the evidence and the submissions of both parties. There was strong evidence supporting his analysis, and he was entitled to rely on it and give it the weight he did. On this issue, there is not even a hint of palpable and overriding error.
(2) The location of a warning sign
[27] This is the central issue on the appeal.
[28] The trial judge was candid in his statement of the city’s negligence: “I find that it was negligent in failing to post signs on the groyne warning the public of the danger of diving into shallow water.”
[29] The city challenges the “on the groyne” component of this conclusion. It contends that these words flow from a fundamental factual error made by the trial judge relating to the location of warning signs at the main public beach in Sarnia, and that this factual error caused the trial judge to make an improper finding of negligence against the city.
[30] The main public beach in Sarnia was at Canatara Park. There were four groynes on the beach. Lifeguards were on duty during the summer months. It is clear, from the testimony of Eric Bogart, the senior lifeguard from 1992 to 1998, Pauline Reaney, the head of aquatic programs for the city in 1992, and William Baird, an engineer, that there were warning signs posted near the groynes from at least 1991 onwards. The signs posted near the groynes said: “PLEASE KEEP OFF THE GROYNE”.
[31] The city contends that a focal point of the trial was the difference between a warning sign posted near a danger and a warning sign posted on a danger. The latter is called an interactive sign, and requires a person to take steps to get around or over it. Accordingly, it is arguably more effective than a warning sign placed near a danger.
[32] The city submits that the warning signs at the Canatara Park beach in 1992 were simple warning signs, not interactive signs. The city contends that the trial judge misapprehended this fact, and that his factual error was a crucial component of his conclusion concerning the city’s negligence. The city points to the final paragraph in the trial judge’s reasons dealing with the city’s negligence:
It is clear that the defendant was aware of the effectiveness of interactive signs as early as 1991 when it posted interactive “Keep Off” signs on the groynes at Canatara Park. Those signs were mounted on top of the groynes and in order to climb out on a groyne a swimmer had to step over the warning sign. Although the “Keep Off” signs were not warning signs, the defendant knew that it was dangerous to dive off the groynes and that was one of the reasons it installed the signs. I, therefore, find that the defendant was negligent in failing to post signs on the groynes in the Bright’s Grove area.
[33] Woods concedes that the trial judge “appears to err” in this passage. The interactive “KEEP OFF” signs on the groynes were installed in 1996; in 1991, the “PLEASE KEEP OFF THE GROYNE” signs were probably mounted on posts stuck in the sand adjacent to the groynes.
[34] The city contends that the trial judge’s factual error in the above passage is palpable and overriding because it feeds into the final sentence, the ultimate conclusion, of the trial judge: “I, therefore, find that the defendant was negligent in failing to post signs on the groynes in the Bright’s Grove area.”
[35] Although there is some force to the city’s argument, in the end I am not persuaded that the trial judge’s error is a palpable and overriding one. I reach this conclusion for several reasons.
[36] First, and most importantly, the trial judge’s reasons, read as a whole (and, in my view, they were thorough and thoughtful reasons by a very experienced trial judge), establish that the central issue in the trial was whether there was a duty on the city to post a warning sign at the Kathleen Street beach about diving off the groyne. The location of the sign (near or on the groyne) was, although not an invisible issue, a peripheral issue. This conclusion is supported, in particular, by two features of the trial judge’s reasons. First, the paragraph in which the factual error is made is not found in the liability section of his reasons; rather, it is in the causation section, where the trial judge is considering the effect of the city’s omission on Woods’ conduct. The trial judge’s conclusion on the causation issue is made in the preceding paragraph where the trial judge frames his analysis in terms of “if he had been warned of the danger”, a formulation which does not mention the location of a sign. Second, at the conclusion of his reasons in a section labelled ‘judgment’, where the trial judge apportions liability on a 75:25 ratio, the trial judge states: “Although the defendant was negligent in failing to warn the plaintiff of the danger of diving off the groyne, I find that the absence of a sign was a minor factor.” It seems to me that this sentence, which is almost the final word in an eighteen page judgment, strongly suggests that it was the lack of any warning sign, not the location and nature (interactive) of the sign, that anchored the trial judge’s finding of negligence.
[37] Second, the evidence which serves as the foundation for the city’s argument is, in my view, somewhat weak or inconsequential. On the last day of a twelve day trial, William Baird, an engineer, was testifying for the city, principally about the difficulties municipalities would have in maintaining warning signs on groynes because of waves and ice. During his testimony, Baird was shown a photocopy of a photograph that he had taken, by happenstance in August 1991, of one of the groynes and “PLEASE KEEP OFF THE GROYNE” signs at the Canatara Park beach. It is a very poor photograph. It is unclear from the photograph if the sign was mounted on the groyne (interactive) or affixed to posts in the sand very near the groyne.
[38] Importantly, the precise location of the sign was irrelevant to the city’s counsel as he posed questions to Baird:
Q. Now it’s also been suggested that warning signs be placed on or near the groynes . . near this groyne in particular.
Q. Now what . . from an engineering standpoint, what issues are there with respect to the placing of warning signs on groynes such as the Kathleen Street groyne, or signs close to it?
[39] Indeed, the location of the 1991 signs at the Canatara Park beach was so irrelevant to the city’s case that its counsel never asked Baird where it was located. The fact that it was located or, more accurately, likely was located on posts set in the sand near the groyne emerged only in Baird’s cross‑examination:
Q. Okay. Now the photograph you brought from 1991 . . and again it’s difficult to tell, and I gather you’ve seen the original?
A. Yes, it’s in our files, yes.
Q. The sign that we see, that’s the sign that’s mounted on the groyne?
A. I think it’s two posts driven into the sand just adjacent to the groyne.
[40] Third, I note that the warning sign on the Canatara Park beach in 1991 appears, from the photograph, to be a very large sign with a clear and blunt message. Moreover, the sign appears to be right next to the groyne. Given that the trial judge’s concern in his reasons was about the need for a warning, and specifically a warning about the dangers of diving, it is difficult to see that it would have mattered to him whether the sign was right on, or immediately adjacent to, the groyne.
[41] Fourth, in another place in his reasons, the trial judge referred to the testimony of Dr. Albert Katz, a psychologist called by the city, who testified that a “no diving” sign was generally ineffective unless the sign was placed on the top of the groyne so that a person had to climb over it to get to the end of the groyne. The trial judge then set out a lengthy passage from Dr. Katz’s expert report dealing with warning signs generally, and their relationship to memory and conduct. The trial judge concluded, in language that attached no significance to the location of a warning sign on the groyne:
Research into the effectiveness of warning signs is ongoing. There is no doubt, however, that such signs have some effect. In this case a warning sign may not have prevented the plaintiff from going into the water but if he had been warned of the danger, I accept his evidence that he would not have dived off the end of the groyne.
(3) A warning sign and causation
[42] The city contends that the trial judge erred by concluding that if a warning sign had been posted Woods would not have dived off the groyne. There are two components to the city’s argument on this issue: (1) based on the expert testimony and the testimony of Eric Bogart, the lifeguard, a warning sign would not have dissuaded Woods; and (2) inconsistencies in Woods’ testimony should have led the trial judge to disbelieve his assertion that he would not have dived into the water if he had seen a warning sign.
[43] I do not accept these submissions. There was a great deal of evidence from several witnesses about the relationship between warning signs and people’s conduct. None of the testimony was to the effect that warning signs were meaningless. Accordingly, it was open to the trial judge to conclude that “such signs have some effect” and to proceed to a consideration of whether a warning sign would have deterred Woods. On that question, the trial judge was fully entitled to find Woods’ testimony credible: see Fletcher v. Manitoba Public Insurance Co., 1990 59 (SCC), [1990] 3 S.C.R. 191 at 206. The alleged inconsistencies in Woods’ testimony are, in a word, trivial.
E. DISPOSITION
[44] I would dismiss the appeal with costs fixed at $25,000 inclusive of disbursements and GST.
RELEASED: April 9, 2003 (“SB”)
“J. C. MacPherson J.A.”
“I agree S. Borins J.A.”
“I agree E. A. Cronk J.A.”
[^1]: A groyne is a low wall built out into the water from a beach, usually at the ocean or a large lake susceptible to high winds and big surf. Its purpose is to check erosion and drifting, thereby helping to preserve the beach. [^2]: The location and contents of the warning signs arise in the next issue.