ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 08-6345
DATE: 2012-06-05

B E T W E E N:

Elizabeth Ann Riehl and Peter Thomas Riehl

Robert John Hooper, Counsel for the Plaintiffs

Plaintiffs

• and -

City of Hamilton

Colleen Robertshaw, Counsel for the Defendant

Defendant

HEARD: May 23, 24, 28, 29, 30 and 31, 2012

REASONS FOR JUDGMENT

Cavarzan J.

[ 1 ] This is a claim for damages as the result of a trip and fall accident which occurred on June 19, 2007. The location of the fall was on Main Street West in the City of Hamilton near its intersection with Osler Drive. In this area, Main Street West travels in a somewhat northerly direction which will explain otherwise confusing references in the evidence to the west side and east side of Main Street West.

[ 2 ] Attached as an appendix to these reasons is a map showing the relevant portion of Main Street West being the portion between Ofield Road to the south and Osler Drive to the north.

Background

[ 3 ] Elizabeth Riehl was 41 years of age and residing with her husband and son in an apartment building at 1760 Main Street West on June 19, 2007. They had resided there since July 1, 1996. Since May, 1997 she had been employed at the Corner Café, an establishment near the McMaster University Medical Centre, as a cashier and stock clerk.

[ 4 ] The plaintiff did not possess a driver’s license. She walked, took public transit or was driven to various destinations by her husband. Previously, as an employee of various businesses at the University Plaza near her residence, she had walked to work.

[ 5 ] Her regular hours of work at the café were from 6:30 a.m. to 2:30 p.m. On June 19, 2007, however, she had been asked to begin her work day at 6:00 a.m. She left her apartment at 5:45 a.m. 1760 Main Street West is on the west side of the street, some distance south of the point where Main Street West meets Osler Drive (later determined to be about 147 metres).

[ 6 ] That morning, the plaintiff was walking north along the centre of the sidewalk on the west side of Main Street West, heading for the bus stop at Osler Drive. The weather was clear, dry and mild with, as testified by the plaintiff, the promise of a nice summer day. She was wearing sensible walking shoes and carrying a back pack, a bag with library books and a purse, items which did not affect her balance.

[ 7 ] It appears that there were no witnesses to the incident. The plaintiff testified that at a point which she estimated to be some 30 yards south of a crosswalk leading to the bus stop, she tripped and fell landing face down on the roadway adjacent to the sidewalk. Unable to stand on her left leg, she crawled to the curb where she was seen by a resident of 1760 Main Street West driving home from work that morning. He saw the plaintiff’s husband in the apartment building’s parking lot and alerted him to the situation. The plaintiff, Peter Riehl, attended at the scene and drove his wife to the nearby McMaster University Medical Centre.

[ 8 ] She was diagnosed with an undisplaced fracture of the medial tibial plateau which, in common parlance, is a crack in the head of the tibia extending into the knee joint. She also suffered two loose front teeth which eventually returned to normal following conservative treatment.

[ 9 ] The plaintiff was discharged from hospital with a leg cast from groin to ankle.

[ 10 ] On the following day she attended the scene with Marc-John Bruwer, an acquaintance and tenant in the same apartment building. He took the five colour photographs reproduced in both Tabs 1 and 2 of Exhibit 18. Those photographs were then sent to the City of Hamilton, Risk Management Department, by the plaintiff’s solicitor, Christopher R. Martin, in a letter dated June 26, 2007, intended to provide the requisite Municipal Act notice of the time, location, and nature of the incident.

[ 11 ] The City then referred the matter to an independent claims adjuster, Robert Phipps. By letter of June 28, 2007, Mr. Martin’s notice letter of June 26, 2007 was sent to Phipps. For some reason, the five photographs (Exhibit 18) were not enclosed with the letter to Phipps. They were sent under separate cover and arrived at his office on July 4, 2007 while he was making his first visit to the scene of the incident.

[ 12 ] On July 4, Phipps walked to entire length of the west sidewalk on Main Street West from the Rail Trail to Osler Drive. Seeing the relatively new section of sidewalk visible in the fourth photograph at Tab 1 of Exhibit 18, he assumed that that had been the site of the plaintiff’s fall and that the city had repaired any defects at that site.

[ 13 ] Upon receiving the late-arriving photographs, he realized that he had examined the wrong area; he returned for a further inspection on August 28, 2007.

[ 14 ] Mr. Martin had marked an “X” on the copy of the fourth photograph at Tab 1 sent with the notice letter (the first photograph at Tab 2 of Exhibit 18), at the point where the sidewalk curves out of sight to the left (towards the west and the crosswalk beyond). Phipps saw the crack in the sidewalk depicted in three of the five photographs but paid no heed to it because, in his view, it had been repaired with an asphalt patch and was not a trip hazard. He focused, instead, on the height difference between the sunken sidewalk slabs and the cement curbing visible along the entire length of the sidewalk seen in four of the five photographs.

[ 15 ] Phipps cited the following from Martin’s letter of June 26, 2007 as indicating that the trip hazard was the curbing, not the crack with the asphalt repair:

Ms. Riehl was walking north on the sidewalk on the west side of Main Street West and was about to cross the intersection of Main Street West (leading to and from Ancaster) and Main Street West (leading from Dundas to Hamilton) to catch a bus, when Ms. Riehl tripped and fell as a result of the slabs of sidewalk having sunk to a significant level below the adjoining curb. Ms. Riehl tripped and fell on the southwest corner of the intersection.

[ 16 ] In discussions held between Phipps and Martin subsequently in 2007 and 2008, the defendant’s theory about this incident emerged. Ms. Riehl had not proceeded to the crosswalk where the sidewalk is ramped and it is safe to cross Main Street West. Instead, she had intended to jaywalk across the street to the bus stop located on the more westerly triangular island seen on the sketch in the Appendix. In doing so, she tripped and fell.

[ 17 ] Martin then wrote a follow-up letter to Phipps dated June 5, 2008 to clarify the circumstances surrounding her fall. He wrote that Ms. Riehl’s trip was caused by the crack in the photograph enclosed with the letter. That was a black and white copy of photograph 2 at Tab 2 of Exhibit 18. Ms. Riehl had advised Martin that the crack was an inch or more in depth. Martin confirmed in his oral testimony that this information was provided to him by Ms. Riehl at his first interview with her prior to sending the notice letter of June 26, 2007.

[ 18 ] The sidewalk in question was replaced by the City by June 5, 2008. Neither the plaintiffs nor the defendant, nor anyone on their behalf, ever measured the depth of the crack. Given that three of the five photographs sent to the City with the notice letter focused on the crack, the City’s failure to measure it is incomprehensible, as is Phipps’ assumption that it had nothing to do with the alleged trip and fall.

The Law

[ 19 ] The duty of a municipality with respect to the sidewalks within its jurisdiction is contained in section 44 of the Municipal Act , 2001, S.O. 2001, C.25, which came into force on January 1, 2003:

44(1) The Municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.

(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.

(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,

(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;

(b) it took reasonable steps to prevent the default from arising; or

(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.

(4) The Minister of Transportation may make regulations establishing minimum standards of repair for highways and bridges or any class of them…

Subsections 44(3)(c) and 44(4) have no application in the circumstances of this case.

[ 20 ] The following extract from Rust-D’Eye and Bar-Moshe, The Ontario Munipal Act: A User’s Manual – 2009 , at page 79, summarizes the onus on each party:

The onus is on the plaintiff to prove, on the balance of probabilities, the state of disrepair of the road. The plaintiff is also required to prove on a balance of probabilities, that the non-repair of the roadway was the cause of the accident in question. Once these requirements are met, the onus shifts to the municipality to establish, on a balance of probabilities, that the condition of the non-repair existed notwithstanding all reasonable efforts on the part of the municipality.

Issues

1. Did a state of disrepair exist?

2. Was the state of disrepair the cause of the plaintiff’s injuries? (causation)

3. Has the defendant met the onus of proving a defence under s.44(3) of the Municipal Act ?

4. Assessment of damages.

Did a state of disrepair exist?

[ 21 ] In Blaquiere v. Burlington (City) , [1999] O.J. No. 2558 (S.C.J.) , the Court declined to accept the plaintiff’s estimate of 1 1/2” for the height of the trip ledge. Valin, J. noted at para. 14 that: “She did not measure the height, although she had the opportunity to do so when she returned to the scene one week later to take the photographs.” I agree that estimating the height based upon a photograph alone would be most unreliable. In Blaquiere, however, the court accepted the measurement of 15 mm taken by the defendant’s insurance adjuster.

[ 22 ] In the case at hand, neither party took measurements of the height difference between the two sides of the crack. I would be reluctant to rely on Ms. Riehl’s estimate of “an inch or more in depth” absent any other evidence from which a reasonable inference might be drawn. Such evidence is found in the trial testimony of Paul McShane and Robert Phipps.

[ 23 ] Paul McShane is a project manager in the road operations branch of the defendant’s Public Works Department. He was involved in analyzing information and developing work plans to address deficiencies and, in particular, trip hazards in municipal sidewalks. Exhibit 33 is a list of locations at which a grinding machine was to be used to smooth out trip hazards.

[ 24 ] The mechanical grinder can be used effectively to chip off the surface to correct discrepancies of up to 25 mm (about 1 inch) to eliminate trip hazards. He confirmed that defects of 25 mm or more are placed on an asphalt sheeting list. A temporary asphalt patch is then placed to alleviate the vertical separation by creating a ramp and making the defect safe. It is reasonable to infer, therefore, that the vertical separation seen in the close-up photographs at Tabs 1 and 2 of Exhibit 18 is at least one inch (1”) or more.

[ 25 ] As is evident from the photo, the asphalt patch is either old and is disintegrating or it was never properly applied because it does not reach the margin on the high side of the crack.

[ 26 ] Robert Phipps acknowledged on cross-examination that there was a significant defect in the sidewalk at the point where the plaintiff alleges that she tripped. Moreover, he had measured the height difference between the sunken sidewalk slabs and the cement curbing at two points in the area where the plaintiff fell and found that difference to be from 1” to 1 7/8”.

[ 27 ] Phipps noted as well that the newer sidewalk slab at a point south of the site of the trip and fall had been poured to make it level with the cement curbing. This had created a height difference between the newer slab and those on either side of about 7/8”.

[ 28 ] The defendant relies upon case law where differences in height greater than 3/4” have been found to be non-repair. The applicable principles cited appear in Slater v. Toronto (City) , 2004 CarswellOnt 5061 (SCJ) at para. 40 :

The mere happening of an accident does not mean that a sidewalk is in a state of non repair. Municipalities are not insurers. See Stojadinov v. Hamilton (City) [1988] O.J. No. 2038 (H.C.) . What is a reasonable state of repair is a question of fact to be determined in each case. See Ford v. Windsor (City) [1955] O.J. No. 242 (C.A.) . A review of cases dealing with sidewalk repair demonstrates that courts have been reluctant to find any sidewalk variance measuring less than three-quarters of an inch to constitute non repair. In the Stojadinov case, supra, a variance between one and a half and two inches was found, on the facts of that case, to constitute a reasonable state of repair.

[ 29 ] I note that in Stojadinov at para. 25 of the reasons, the Court found that there was no evidence that the City was aware, prior to the plaintiff’s fall, that there was a problem with the area of the sidewalk in question. In my view, that case is not authority for the proposition that one and one-half inches to two inches is a new standard.

[ 30 ] The plaintiff has marked on Exhibit 18, Tab 2, Photograph 2 the point in the centre of the crack which caught her left toe causing her to lose her balance, and the point on the raised curbing which then caused her to stumble and fall onto the roadway.

[ 31 ] The defendant’s theory is that the plaintiff simply elected to cross the street at that point rather than proceed another 12-13 metres to the safety of the crosswalk.

[ 32 ] The plaintiff’s assertion is credible, and I so find, for two reasons. At that point Main Street West sweeps sharply to the west. The plaintiff’s forward momentum on tripping and attempting to regain her balance might well propel her onto the roadway. Furthermore, having walked along the sidewalk to within 13 metres of the safety of the crosswalk, lends credence to her testimony that she always crossed at the crosswalk.

[ 33 ] The plaintiff has met the onus of proving on a balance of probabilities that the sidewalk was in a state of disrepair.

Causation

[ 34 ] It is not disputed that the fracture of the tibial plateau and the loosening of two front teeth were caused by the trip and fall. There is evidence, however, pointing to contributory negligence on the part of the plaintiff.

[ 35 ] Ms. Riehl acknowledged in her testimony in chief that she walked the same route every day along the centre of the sidewalk to the crosswalk leading to the bus shelter, including during the two months prior to June 19, 2007. She agreed, when cross-examined, that she had walked up to the intersection of Main Street West and Osler Drive regularly for at least nine years except for those occasions when her husband drove her to work. She knew that the crack in question was there, having walked over it many times.

[ 36 ] Ms. Riehl denied telling her physiotherapist on August 1, 2007 that she was “rushing to get to work” when she fell. The physiotherapist, Sareeta Ganesan, testified at trial. She recorded in her initial assessment report (Exhibit 21, Tab 6 at page 9) information supplied by the plaintiff as she spoke with her. Plaintiff’s counsel at trial relied on Ms. Ganesan’s further note at page 9 where she recorded Ms. Riehl’s statement that she “fell over crack and fell into the road.” If the assessment record is reliable for that purpose, it is not open to question its reliability because of plaintiff’s self-serving statement to the contrary. She did not seek to deny, in fact she admitted, recorded statements in notes and records made at the hospital and by her treating physician, Dr. Rick A. Ogilvie, that she had tripped over the curb.

[ 37 ] The admitted fact that she had left home at 5:45 a.m. to walk to the bus stop and wait for a bus for a ride to work where she was to begin her work day at 6:00 a.m. is corroboration of the suggestion and of her statement to Ms. Ganesan, that she was rushing to get to work.

[ 38 ] In such circumstances, I find her denial to be not credible. A plaintiff may be subject to contributory negligence for not paying enough attention to where she was walking, particularly where the plaintiff was not a stranger to the area. In this case I find that Ms. Riehl’s conduct amounts to contributory negligence which I assess at 25%.

The Section 44(3) Defences

[ 39 ] The defendant knew that the area in question was in a state of disrepair. It had attempted an asphalt patch for the crack which caused Ms. Riehl’s fall. It had replaced a part of the sidewalk a short distance south of the spot where Ms. Riehl had her accident. It had been involved in infrastructure work at the intersection of Main Street West and Osler Drive shortly before Ms. Riehl’s accident.

[ 40 ] Subsection 44(3)(b) is the principal defence invoked by the defendant. It claims to have taken reasonable steps to prevent the default from arising. In my view, it has failed to establish that defence on a balance of probabilities.

[ 41 ] The defendant’s stated policy of conducting an annual inspection of all 2,200 kilometres of sidewalks for which it is responsible is reasonable. On the evidence in this case, however, it fails the reasonableness test in how the policy was carried out.

[ 42 ] It is doubtful, for example, that the area in question was inspected in 2006. David Cousins, a consulting engineer and president of DavRoc & Associates, the firm under contract with the City to do annual sidewalk inspections in 2006, 2007 and 2008 stated emphatically that that area had not been inspected in 2006. When re-examined by the defendant’s counsel he modified that answer by saying that he was unable to either affirm or deny that the 2006 inspection had occurred.

[ 43 ] It was a remarkable coincidence in this case that the 2007 inspection of this area occurred on June 19, 2007, only hours after Ms. Riehl’s accident. The inspection report (Exhibit 21, Tab 4 at page 2) identifies an asphalt on concrete repair at the site of Ms. Riehl’s trip and fall (12 to 13 metres south of the crosswalk), but indicates that no measurement was taken of the depth of the crack.

[ 44 ] Another notable omission in that inspection report is any reference to the pronounced height difference (1” to 1 7/8”) between the curb and the sunken sidewalk slabs in the area of the trip and fall. Sunken sidewalk slabs are visible along the entire length of sidewalk seen in the photographs. Similarly, no reference is made to the difference in height between the newer section of sidewalk seen in the photograph (Exhibit 18, Tab 1, photograph 4) and the adjacent slabs on both sides.

[ 45 ] The sidewalk in question is in a high pedestrian traffic area, a fact acknowledged by the witness Paul McShane. The intensity of pedestrian traffic is a factor, in my view, in assessing the adequacy of the defendant’s response in dealing with defects and trip hazards.

Damages

[ 46 ] Dr. Rick Ogilvie is an orthopedic surgeon qualified as an expert entitled to give opinion evidence on the diagnosis, treatment and future outcomes of broken bones and, in particular, the knee joint. He was also Ms. Riehl’s treating physician for her knee injury.

[ 47 ] He diagnosed a fracture of the tibial plateau of the left knee extending into the knee joint. It was an undisplaced fracture, meaning that the bone remained intact. After a time, the fractured bone settled into a collapsed position anteriorly, permitting the knee to hyperextend by 10 percent. Dr. Ogilvie attributed this development to the plaintiff’s mild osteoporosis or softening of the bone, a condition unrelated to the fracture.

[ 48 ] He found that she had pre-existing osteoarthritis in both knees and opined that the accident probably accelerated her pre-existing osteoarthritis by five to ten years. The uninjured right knee shows more arthritic damage than the fractured left knee, a condition he attributed to the right knee being over-used to compensate for the injured left knee.

[ 49 ] Dr. Ogilvie was of the view that Ms. Riehl will likely require surgical management in the form of knee replacement surgery in about 15 to 20 years from the date of the injury (i.e. between ages 56 and 61).

[ 50 ] He testified that she will require one and perhaps two knee replacements in her lifetime. He described a typical knee surgery as requiring two hours in the operating room, a hospital stay of several days and a minimum of three months off if returning to manual labour.

[ 51 ] He testified further that playing golf and walking are enabled by knee surgery, but that skiing and doing heavy house cleaning are not recommended.

[ 52 ] Ms. Riehl was in a full cast, groin to ankle initially and then received a removable splint. The first six weeks was non-weight-bearing followed by a further six weeks of progressive weight-bearing.

[ 53 ] During those twelve weeks of convalescence, Ms. Riehl received assistance from a bevy of friends and neighbours who rallied to assist her with her personal care and with household chores such as cooking, cleaning and shopping. They helped as well in transporting her to medical appointments.

[ 54 ] Ms. Riehl’s son and husband also pitched in to help.

[ 55 ] This is not a chronic pain case. There is convincing evidence, however, that Ms. Riehl continues to be guarded in what she can do. Walking on uneven surfaces and climbing stairs is difficult. She requires assistance in moving heavy objects when working in her cleaning business. It now takes her longer to perform tasks. At the end of the work day her left knee is stiff and swollen.

[ 56 ] I assess general damages at $75,000.00.

[ 57 ] The past wage loss claim is supported by Exhibit 12 prepared by her former employer, the Hamilton Health Sciences Volunteer Association. The defendant does not dispute the gross figure of $5,324.64 for past loss of wages but submits that her income tax liability should be deducted in order to yield a net amount. The Court was not provided with a calculation.

[ 58 ] It is my understanding that an award of general damages is not considered income for tax purposes. An award for past loss income, however, is taxable. There will be no double recovery.

[ 59 ] The amount of $5,324.64 is allowed, therefore, for past lost income.

[ 60 ] The amounts claimed for past OHIP charges and for past out-of-pocket expenses are not disputed. They are $1,913.27 and $255.89 respectively.

[ 61 ] The amount claimed for past housekeeping assistance at $100.00 per week for 12 weeks is reasonable. The assistance provided in this case was entirely gratis. The Court of Appeal decision in McIntyre v. Docherty , 2009 ONCA 448 supports the proposition that an award can be made for such assistance if there is sufficient evidence tendered at trial. Although it resembles general damages for loss of amenities, it can be categorized separately.

[ 62 ] The plaintiff seeks compensation in the $15,000 to $17,000 range for loss of future homemaking capacity. Without the assistance of a functional capacities evaluation, such an award would be based upon pure speculation.

[ 63 ] Similarly with the plaintiff’s claim for future wage loss and loss of earning capacity. No future loss report has been prepared. The plaintiff left her job at the café to start her own cleaning business. She testified that she had returned full-time to the café job on November 4, 2007. Then, as she began to build up her own cleaning business, she worked part-time at the café until late 2007 or early 2008 when she began to devote full time to the new business.

[ 64 ] Ms. Riehl has developed a substantial list of customers and in 2011 has hired several employees. She has managed to maintain her annual earnings at or above her pre-2007 level of earnings.

[ 65 ] As shown in Exhibit 6 her net income in the tax years 2005 to 2011 is as follows:

2005: $22,602.00
2006: $29,737.00
2007: $21,980.00
2008: $26,301.00
2009: $24,804.00
2010: $25,324.00
2011: $28,265.00

[ 66 ] Based upon Dr. Ogilvie’s opinion that Ms. Riehl will probably require more than one knee replacement surgery a generous estimate of future wage loss would be one year’s wages which I would set at $30,000.00 based upon the upward trend of her earnings in the past three years.

Mitigation

[ 67 ] Ms. Riehl commenced physiotherapy treatment but had to discontinue it because she could not afford the cost. Although still symptomatic after her fourth and last treatment on September 4, 2007, there is no evidence that further treatments would have altered her long-term prognosis.

[ 68 ] Dr. Ogilvie did not suggest that any alternate therapy, including further physiotherapy, was recommended for her.

[ 69 ] The defendant submits that Ms. Riehl’s decision to leave the retail field and take on the more physically demanding cleaning career exacerbates her condition. The evidence establishes, however, that she is able to adapt to the demands of cleaning work by hiring assistants to do the more physically demanding chores such as moving furniture. Ms. Riehl’s wish to be self employed and grow her business does not amount to a failure to mitigate in the circumstances.

Peter Riehl’s FLA Claim

[ 70 ] Peter and Elizabeth Riehl have been married since 1992. They separated for reasons unrelated to Ms. Riehl’s knee injury in February of 2012. Until that separation, Peter Riehl assumed extra responsibilities in the household as a result of Ms. Riehl’s knee injury.

[ 71 ] He assisted her with some meal preparation, with basic laundry and basic cleaning. He also took her to medical appointments.

[ 72 ] In my view an FLA award of $1,000.00 would be appropriate in the circumstances and it is so ordered.

Conclusion

[ 73 ] There will be judgment for the plaintiffs in accordance with the sums mentioned above less 25% deducted for the contributory negligence of the plaintiff Elizabeth Riehl.

[ 74 ] The FLA award being a derivative claim is subject to the same 25% deduction.

[ 75 ] The plaintiffs are entitled to their costs in the action. If necessary, brief written submissions on the matter of the quantum of costs may be exchanged and sent to me within 45 days.

Cavarzan J.

Released: June 5, 2012

APPENDIX

North boundary of 1760 Main Street West is 147 metres south of crosswalk.

Ofield Rd. is 247 metres south of crosswalk. (Testimony of Richard Belbeck)

(Richard M. Inspection Form Ex. 21 Tab 4 p. 3)

COURT FILE NO.: 08-6345
DATE: 2012-06-05

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Elizabeth Ann Riehl and Peter Thomas Riehl Plaintiffs - and – City of Hamilton Defendant REASONS FOR JUDGMENT Cavarzan J. JC//dm

Released: June 5, 2012