Court File and Parties

COURT FILE NO.: CV-308660

DATE: 2013-10-17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Matthew Pierce and Robert Pierce

Plaintiffs

– and –

City of Hamilton

Defendant

COUNSEL:

J. Shinehoft, for the Plaintiffs

C. Robertshaw, for the Defendant

HEARD: September 10, 11, 12, 13, 16, 17, and 18, 2013

THE HONOURABLE JUSTICE J. R. HENDERSON

REASONS FOR JUDGMENT

INTRODUCTION

[1] At approximately 1:45 a.m. on a dark night in October 2005, the plaintiff, Matthew Pierce (“Matt”) was walking with some friends in a wooded area in Scenic Drive Park near the edge of the Niagara Escarpment. While in the woods, Matt chose to leave his friends and venture out on his own. Shortly thereafter, he fell into a deep ravine and suffered significant physical injuries. The plaintiffs bring this action against the defendant, City of Hamilton (“the City”), for damages as a result of Matt’s injuries, alleging that the City was in breach of its duties under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the “OLA”).

[2] The City acknowledges that it is the owner of Scenic Drive Park, and that the City is an “occupier” of the premises within the meaning of the OLA. However, the City denies that it has breached the standard of care expected of it, and also disputes the extent of Matt’s injuries.

THE FACTS

[3] I generally accept Matt’s testimony as to the events that led up to this incident. I also generally accept the evidence of one of Matt’s friends, Samantha Henein (“Samantha”), who corroborated or clarified Matt’s testimony. I found the evidence of Matt’s father, Robert Pierce (“Robert”) to be unreliable as Robert tended to embellish his testimony to advance his son’s case. Further, Robert tried to reconstruct what had happened from second hand information, but I find that he often characterized his reconstruction theories as facts. On that basis, I make the findings of fact as set out hereinafter.

[4] As of October 1, 2005, Matt was a 17-year-old grade 12 student who lived in Toronto. He had rarely, if ever, been to Hamilton, and he had never been in or near the wooded area that is the subject of this litigation.

[5] In the summer of 2005 Matt had worked as a counsellor at a sports camp in Muskoka, and there he became friends with several other counsellors. In late September 2005, approximately one month after the sports camp had ended for the season, six of those counsellors decided to meet for the weekend in Hamilton at the home of one of the counsellors, Jeff Matheson (“Jeff”). Jeff was the only counsellor who lived in Hamilton. The other five counsellors, including Matt, travelled from various cities and towns to meet at Jeff’s house.

[6] I find that the six friends were all present at Jeff’s house in Hamilton sometime after 5:00 p.m. on Friday, September 30, 2005. Thereafter, they spent the evening getting reacquainted at Jeff’s house and at a Hamilton restaurant. Late in the evening, Jeff offered to take them to a lookout point at the edge of the Niagara Escarpment where they could view the city. Everyone agreed.

[7] Subsequently, in the early hours of Saturday, October 1, 2005, Jeff led the group to Scenic Drive Park, which is a four-acre park situated between Scenic Drive and the edge of the Niagara Escarpment. The park includes a small parking lot, a footpath that runs alongside Scenic Drive, two grassy fields, a wooded area, and a lookout point composed of a large flat rock formation. The footpath that runs alongside Scenic Drive is a marked side trail of the Bruce Trail, known as the Scenic Drive Side Trail.

[8] All members of this group travelled together to Scenic Drive Park in a minivan. I find that everyone in the group, including Matt, relied upon Jeff to guide them to the park and then to the lookout point. They parked the minivan in the parking lot at the west end of the park, and Jeff then led the group on foot eastbound alongside Scenic Drive on the Scenic Drive Side Trail.

[9] After the group had walked approximately 130 metres Jeff led the group off of the Scenic Drive Side Trail into a grassy field that was bordered by the wooded area in the park. Jeff then led the others onto a well-worn dirt path through the woods. They followed the dirt path through the woods for approximately 95 metres until they arrived at the lookout point. The group remained at the lookout point for a short time until they all decided to return to their vehicle.

[10] On the return trip Jeff again led the group from the lookout point onto a dirt path through the woods. At that point I find that the group was travelling in single file on the dirt path with Jeff in the lead, Matt at the back of the group, and Samantha immediately in front of Matt.

[11] Jeff chose to lead the group out of the woods via a different route than the one he had used to enter the woods. On the return route the group encountered a creek bed, and they had to climb down one side of the creek bank to proceed. When Matt came to the descent down the creek bank, with his five friends in front of him, Matt decided that he would not follow the group. Instead, Matt decided to travel through the woods on his own via another route. So, Matt turned around and left the group.

[12] Matt then started walking alone through the woods on a dirt path that he believed led to the grassy field, as he could see the lights of houses on Scenic Drive from the path. Unbeknownst to Matt, a ravine cut across this path, and the path ended abruptly at the side of the ravine. At that point I find that it was approximately 1:45 a.m.; it was very dark outside; there were no lights at or near the wooded area; and none of the group had flashlights.

[13] When Matt arrived at the point where the ravine cut across the path he stepped forward believing that he was still on the dirt path, but instead he fell to the bottom of the ravine, seriously injuring his left femur and his left wrist. I find that the ravine itself was approximately 12 to 15 feet deep and approximately 10 to 15 feet wide at that location.

[14] Matt then called for help and his friends found him within minutes. Samantha called 911 and thereafter ambulance attendants and firefighters attended to treat Matt and remove him from the ravine.

LIABILITY ISSUES

(A) The Positions of the Parties

[15] The plaintiffs submit that the standard of care for the City with respect to these premises is set out in s. 3(1) of the OLA, which reads as follows:

3 (1) An occupier of premises owes a duty to take such care as in all 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.

[16] The City submits that Matt willingly assumed all risks associated with the premises. Therefore, the City submits that its standard of care is set out in s. 4(1) of the OLA, which reads as follows:

4 (1) The duty of care provided for in subsection 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.

[17] The OLA contains deeming provisions that affect the standard of care. Sections 4(3) and 4(4) of the OLA together provide that in certain circumstances listed in s. 4(3), a person who enters the types of premises listed in s. 4(4) shall be deemed to have willingly assumed all risks associated with the premises and shall be subject to the standard of care set out in s. 4(1).

[18] Section 4(3)(c) applies in this case as Matt entered the premises for the purpose of a recreational activity; he paid no fee for entry; and he was not being provided with living accommodations by the City. Therefore, by operation of the OLA Matt will be deemed to have willingly assumed all risks associated with these premises if the wooded area in which Matt fell is included in the types of premises listed in s. 4(4). The City relies upon s. 4(4) (a) and (f), which are set out below:

4(4) The premises referred to in subsection (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;

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

[19] In summary, if the wooded area in Scenic Drive Park is covered by either s. 4(4)(a) or 4(4)(f), then Matt will be deemed to have willingly assumed all risks associated with the premises, and the usual standard of care for an occupier set out in s. 3(1) will be replaced by the lower standard of care set out in s. 4(1).

(B) Does s. 4(4)(a) apply?

[20] The property in question is a four-acre park. The largest part of the park is the wooded area in which Matt fell. The woods are bounded on the north by the edge of the Niagara Escarpment and on the south by Scenic Drive. There are two grassy fields in the southerly part of the park, adjacent to Scenic Drive. The Scenic Drive Side Trail runs alongside Scenic Drive within Scenic Drive Park.

[21] Although Scenic Drive Park is a quiet undeveloped area, it must be noted that the park is located within a largely urban area well within the city limits. Residential houses exist all along Scenic Drive immediately across the road from the park. A map of the city shows the existence of several residential subdivisions in the immediate area of the park.

[22] There is other parkland located along Scenic Drive, and the Bruce Trail and the Chedoke Radial Trail are in the same general vicinity, but Scenic Drive is a major urban roadway that traverses the developed part of the city.

[23] It is clear that Scenic Drive Park is simply a natural environment located in the middle of a busy city. For these reasons, I find that Scenic Drive Park is not a rural premises and therefore s. 4(4)(a) does not apply.

(C) Does s. 4(4)(f) apply?

[24] There are two marked recreational trails in the vicinity of Scenic Drive Park. The Chedoke Radial Trail is a lengthy groomed trail that was constructed by the City. It overlaps the main branch of the Bruce Trail where the Bruce Trail passes through the City. The City grooms and maintains the Chedoke Radial Trail. One of the marked entrances to the Chedoke Radial Trail is on the west side of the parking lot located at the west end of Scenic Drive Park. From the parking lot the Chedoke Radial Trail travels in a north and east direction and runs roughly parallel to the boundary of Scenic Drive Park, but at a lower elevation.

[25] The other marked recreational trail in the vicinity is the aforementioned Scenic Drive Side Trail footpath, a side trial of the Bruce Trail that runs alongside Scenic Drive. This trail starts just to the west of the parking lot where it branches off of the Bruce Trail/Chedoke Radial Trail. It continues out of the parking lot in an easterly direction, runs the length of Scenic Drive Park, and continues for several more kilometers until it connects again with the Bruce Trail.

[26] I find that both trails should be characterized as recreational trails. Both of these trails are used primarily for hiking, cycling, and walking. Motorized vehicles are prohibited. The primary use of the trails is recreation and leisure. In addition, the Chedoke Radial Trail provides a transportation corridor for those who wish to use bicycles to travel to the downtown area. The trails are intended to provide the public with a safe, outdoor, off-road path through the part of the City that borders the Niagara Escarpment.

[27] As to whether these recreational trails are reasonably marked as such, I find that the Chedoke Radial Trail is well marked. There are various signs and fences at entrances to the Chedoke Radial Trail. At the west end of the parking lot in Scenic Drive Park there is a large sign identifying the Chedoke Radial Trail and providing a map and regulations for bikeways, trails, and parks throughout the City.

[28] Regarding the Scenic Drive Side Trail, I find that a sign is located at the start of the side trail at its intersection with the Chedoke Radial Trail. That sign cannot be seen from the parking lot in Scenic Drive Park. However, in addition to the sign at the start of the Scenic Drive Side Trail, there are blue flashes on light poles/utility poles along the Scenic Drive Side Trail indicating that it forms part of the Bruce Trail. Further, there are maps produced by the City and by the Hamilton Conservation Authority that show the location of the Scenic Drive Side Trail.

[29] Given the length of these trails, and the use made of the trails by the public, I find that the aforementioned signs, flashes, and maps are reasonable notice that both of these trails are recreational trails. Therefore, both trails fall within the type of premises described in s. 4(4)(f). Thus, the standard of care for the City as occupier of both the Chedoke Radial Trail and the Scenic Drive Side Trail is the lower standard of care as set out in s. 4(1).

[30] The difficulty in this case is that Matt did not fall while he was on either of these two marked recreational trails. I find that Matt did not ever walk on the Chedoke Radial Trail. I find that Matt did walk on the Scenic Drive Side Trail for approximately 130 metres before he left that trail to enter the wooded area in Scenic Drive Park, where he fell. The dirt path through the woods where Matt fell could be described as a recreational trail, but it was not marked as such. The question then becomes whether the standard of care for the City changed when Matt left the Scenic Drive Side Trail from the lower standard in s. 4(1) to the higher standard in s. 3(1).

[31] The answer to that question can be found in the Ontario Court of Appeal decision in the case of Schneider v. St. Clair Region Conservation Authority, 2009 ONCA 640. In that case, the plaintiff was cross-country skiing in Coldstream Park. The park was approximately 67 acres in size and included a lake. The plaintiff was skiing on a well-marked trail in the park when she decided to leave the trail to ski down a berm to the ice surface. When she did so, she struck a concrete wall that rose out of the lake/ice surface and was hidden beneath the snow. It was not disputed that the plaintiff had been skiing on a marked recreational trail, and that the plaintiff had left the marked trail to ski elsewhere in the park.

[32] The trial judge found that s. 4(4)(f) did not apply because the collision between the plaintiff and the concrete wall occurred on the lake/ice surface and not on the recreational trail. On appeal this finding was overturned. On behalf of the court, Rouleau J.A. wrote at para. 31:

… As I have stated, the objective of s. 4(4)(f) of the Act is to encourage landowners to allow recreational use of marked trails on their lands by imposing on them a lesser duty of care. It would make little sense to limit this lesser duty of care to users when they remain on the marked trail, only to impose a greater duty of care when they venture off the trail. As the occupier has no effective way of policing the use of these trails, this would, in effect, impose a duty on the occupier to make the off-trail portions of his or her property safer than the trail itself. This would defeat the purpose of the Act.

[33] The Schneider decision is binding on this court, and, moreover, it is a very sensible decision. An owner of any recreational trail likely also owns the land that is immediately adjacent to the recreational trail. If that owner is given the benefit of the lower standard of care in return for allowing the public to enjoy the recreational trail on the land, it makes no sense to saddle the owner with the higher standard of care the moment a hiker or cyclist or skier moves off of the recreational trail. Further, it makes no sense for two different standards of care to alternately apply as a trail user hops on and off of the recreational trail.

[34] Therefore, from the Schneider decision I discern the following principle: Where a person enters a property that is generally used for recreational activity; and the provisions of s.4(3) apply; and the property consists in part of a recreational trail reasonably marked as such; and that person leaves the recreational trail but remains on the property while continuously engaged in a recreational activity, then the lower standard of care set out in s.4(1) of the OLA applies.

[35] In the present case, I find that Matt and his friends entered Scenic Drive Park for the recreational purpose of walking through the woods and enjoying the view. The Scenic Drive Side Trail is a recreational trail reasonably marked as such that forms part of Scenic Drive Park, and Matt did in fact walk on that recreational trail. After Matt left the recreational trail, he remained in Scenic Drive Park while continuing to be engaged in a recreational activity. Thus, I find that the lower standard of care in s. 4(1) applies in this case.

(D) Did the City breach the standard of care?

[36] There is no suggestion that the City created a danger with the deliberate intent of doing harm or damage. Therefore, the issue is whether the City acted “with reckless disregard of the presence of the person …”.

[37] That phrase was considered in the case of Cormack v. Mara (Township), 68 O.R. (2d) 716 (O.C.A.). At para. 29 of the Cormack decision Griffiths J.A. wrote:

… The phrase “act with reckless disregard of the presence” of the snowmobiler means doing or omitting to do something which he or she should recognize as likely to cause damage or injury to the snowmobiler present on his or her premises, not caring whether such damage or injury results.

[38] I find that the affirmative duty on an occupier to take reasonable care of the premises, as discussed in Waldick v. Malcolm, 70 O.R. (2d) 717 (OCA) at paras. 18 to 27, does not apply in circumstances in which the standard of care set out in s. 4(1) applies. Pursuant to s.4(1), there is no affirmative duty on the City to take reasonable care; rather, there is a duty on the City to not act with reckless disregard of persons on the premises.

[39] Recklessness should be determined objectively in consideration of all of the circumstances of the case. Recklessness is more than mere carelessness or negligence. This is a contextual issue. The use of the word “disregard” in the legislation implies that the court must consider what the occupier knew or ought to have known about the premises. Therefore, in this case the court must consider whether there was something unusually harmful or dangerous about the property; whether the City knew, or should have known, of the danger; and how, or if, the City dealt with the danger.

[40] The plaintiffs submit that the City acted with reckless disregard because the City knew that a hidden danger or trap existed in the woods at Scenic Drive Park, and the City ignored the danger. In the alternative, even if the City was not aware of a danger, the plaintiffs submit that the City should have inspected the woods, and if it had done so, the City would have been aware of the danger. Further, the plaintiffs submit that the City should have erected a warning sign in the park or at the entrance to the woods, or the City should have built a fence or barricade around the edge of the ravine.

[41] Alan Dore testified that City employees were not aware that people walked on the dirt paths in the wooded area in the park. I find that testimony to be unbelievable. Scenic Drive Park is a public park and people are brought into the vicinity of the park by Scenic Drive, the parking lot, and the recreational trails. The dirt paths through the woods are well worn and lead to a spectacular lookout point. I find that the City knew or ought to have known that the public was using the dirt paths through the woods to walk and hike.

[42] However, I find that the City did not have any knowledge of any person falling into the ravine prior to October 1, 2005. Matt’s father, Robert, testified that at some point after Matt had fallen into the ravine, Robert made a telephone call to the City offices. Robert testified that the person who answered the telephone was aware of these woods and told Robert that people had fallen there in the past. I do not accept this evidence from Robert. I thought that there were credibility problems with Robert’s testimony, as described earlier. Further, Robert’s testimony with respect to this telephone call was extremely vague and imprecise. He does not know the identity of the person he spoke with; he does not know the date of the conversation; he could not relate the precise conversation; and his evidence of this telephone call was not disclosed until he was on the witness stand at trial. Indeed, it is difficult to believe that any employee who answered the telephone could possibly be aware through a brief conversation of the exact location of Matt’s fall.

[43] On this point I accept the evidence of Alan Dore who testified that any calls or complaints made to the City would have been recorded in the City records, and referred to the appropriate department. I accept his evidence that there were no records of calls or incidents and no relevant work orders with respect to this area prior to October 1, 2005. Thus, I find that the City was not in fact aware of any information that would suggest that there was an unusual danger on any dirt path or ravine in the wooded area in Scenic Drive Park prior to October 1, 2005.

[44] As to whether the City should have conducted inspections in the park, I reject the plaintiffs’ submissions. The City owns approximately 6,000 acres of parkland, and of that amount approximately 3,000 acres, including Scenic Drive Park, consists of land that is kept in a natural state. It would be impossible for the City to conduct inspections of all 3,000 acres of these natural areas on any regular basis. The City policy with respect to these areas was to respond to calls or complaints made to the City about any problems. In my view, this was an acceptable approach. Moreover, because these lands were kept in a natural state, that state would change or could change relatively quickly. An inspection this week could disclose a state that did not exist the following week. Thus, I find that the City’s failure to conduct regular inspections of Scenic Drive Park does not constitute reckless disregard of the presence of persons on the premises.

[45] As to signage, clearly a specific warning sign was not warranted if the City was not aware of any specific danger. Given my findings as to the City’s lack of knowledge of an unusual danger, the failure to erect a specific warning sign is not a breach of the City’s duty.

[46] In the alternative, the plaintiffs suggest that even if the City was not aware of the specific danger in the woods, the City should have erected signage that gave a general warning to the public regarding the use of the woods. I find that the failure of the City to erect a more general warning sign, such as “Caution. Uneven Ground in the Woods” does not constitute a breach of its duty. Such a warning sign would in fact be a sign stating the obvious; that is, that the terrain in the woods is uneven and unpredictable. A general warning sign of this nature would be superfluous. The fact that the premises had been left in a natural state was clearly obvious to anyone who entered onto the property.

[47] For similar reasons, I also reject the plaintiffs’ submissions that the City ought to have built a barricade or a fence near the drop-off into the ravine. The danger of a sharp drop in elevation in a wooded area that was near the edge of an escarpment should be obvious to anyone who entered the woods.

[48] Furthermore, I find that the City did take active measures to ensure the safety of the public in the vicinity of the Niagara Escarpment. The City built and continues to maintain the Chedoke Radial Trail in the area of Scenic Drive Park. Chedoke Radial Trail is a well- maintained, well-marked path that is composed of a fairly even surface. Any person who wishes to walk, hike, or cycle in the area can do so from the safety of the Chedoke Radial Trail. Thus, the public can enjoy the view and the natural state of the land without having to assume the risks of entering onto the natural terrain at Scenic Drive Park.

[49] For these reasons, I find that the City has not breached the standard of care expected of it in this case.

(E) Contributory negligence of the plaintiff

[50] Given my findings that the City has not breached the standard of care, there is no need for me to determine the precise degree of the contributory negligence of Matt. However, I make the observation that if there was any liability on the City, most if not all of the responsibility for Matt’s injuries must be attributed to Matt’s own negligence.

[51] Matt chose to walk in the dark in an area that he knew or ought to have known was in a natural state. Matt knew or ought to have known that the wooded area would include uneven ground, hills, rocks, plants, roots, trees, wildlife, creeks and creek beds. He also knew that this wooded area was close to the edge of a very steep escarpment. Moreover, he was unfamiliar with the terrain in this area, never having been there before. Matt negligently chose to enter this unfamiliar natural terrain on a dark night without any artificial light knowing that he may not be able to adequately observe the uneven natural terrain or natural hazards well enough to avoid injury.

[52] In addition, after Matt negligently entered the wooded area in the dark, Matt exacerbated his negligence by choosing to leave the person who had led him into the wooded area, and upon whom he relied for directions. Matt’s decision to venture out on his own in the dark in unfamiliar territory that he knew would consist of uneven terrain in a natural state surely was the main cause of his injuries.

[53] Thus, even if there is some liability on the City, by far most of the responsibility for Matt’s injuries lies with Matt himself.

(F) Conclusion regarding liability issues

[54] In summary, I find that the standard of care expected of the City in this case is the standard of care set out in s.4(1) of the OLA. Further, I find that the City did not breach its duty under s.4(1). The City is not responsible for Matt’s injuries.

GENERAL DAMAGES

[55] It is appropriate to assess the plaintiffs’ damages, even though I have found no liability on the defendant.

[56] After Matt was removed from the ravine he was taken to Hamilton General Hospital where he was treated for his injuries. He was discharged home after nine days in hospital, and thereafter he was followed by Dr. Stephens, an orthopedic surgeon at Sunnybrook Hospital in Toronto.

[57] As a result of this fall, Matt suffered a comminuted fracture of the proximal third of his left femur. He had a laceration on his left kneecap as a result of a direct blow to the kneecap. He had a fracture of the scaphoid bone in his left wrist, and he suffered various cuts and lacerations to his face and left leg.

[58] At Hamilton General Hospital Matt underwent surgery on October 1, 2005. After debridement of the left leg wound and the left knee, the femur fracture was treated by the insertion of a trochanteric femoral rod that was fixed in place by locking screws. The fracture to the left scaphoid was treated by the application of a hard cast. Matt also received two or three stitches to close a laceration in his left eyebrow.

[59] I find that the fracture of the left scaphoid bone had fully healed by June 2006. Unfortunately Matt broke the scaphoid bone in his left wrist again on July 30, 2006, when he fell or was pushed while he was in Windsor, Ontario. I find that the injury on July 30, 2006, is unrelated to the injury that occurred on October 1, 2005. I find that Matt has no residual problems regarding his left scaphoid bone that arise out of his fall into the ravine.

[60] Regarding the left leg injury, I find that Matt was in a wheelchair until approximately December 2005. Thereafter, he progressed to a walker, then crutches, and then a cane. By June 2006, Matt had been able to return to high school and graduate from grade 12. He was no longer using the cane. He attended at Sunnybrook Hospital for approximately 18 physiotherapy sessions between November 2005 and February 2006.

[61] I accept the notation of Dr. Stephens that in June 2006, Matt had minimal pain in the leg, his limp was gone, and he had an excellent range of motion. I find that by June 2006 Matt had achieved considerable improvement, but he was still not capable of engaging in the same level of physical activity he had enjoyed prior to his fall as he could not run with any speed and could not participate in any high impact sports.

[62] I find that by two years after the incident in question, by October 2007, the left leg had reached its maximum recovery. I accept Dr. Stephens’ observation that by October 2007 Matt was doing very well, there was solid healing, and Matt had no limp.

[63] I find that Matt worked in heavy summer jobs, either in construction or landscaping, in the summers of 2007, 2008 and 2009, and that his injuries did not interfere with his ability to do this work. I also find that Matt attended Queen’s University for four years commencing in the fall of 2006. While he was at Queen’s University he trained with the Queen’s track and field team each year, and he competed in triple jump and long jump for Queen’s University in his third and fourth years.

[64] At the present time I find that Matt is able to participate in almost all of the activities that he engaged in before this incident. I accept that Matt can run well now, but he cannot run as fast as he did before the injury. I also accept that he avoids playing hockey because of his fear of injury that could be caused by the physical contact. The trochanteric femoral rod remains in Matt’s left leg, and will likely remain there permanently.

[65] Dr. Ogilvie-Harris, an orthopedic surgeon, assessed Matt in April 2007. I accept Dr. Ogilvie-Harris’ opinion that Matt has made an excellent recovery from his leg injury.

[66] Regarding the future, I accept Dr. Ogilvie-Harris’ opinion that Matt will always have trouble with high impact activities such as running, jumping, kneeling and squatting, and that he may have difficulty doing some heavy domestic chores. When Dr. Ogilvie-Harris was informed that Matt had been able to work at heavy labour jobs in the summers after his injury, he testified that he was not surprised that Matt could do these jobs, but he believed these types of jobs would become more of a problem for Matt in the future. It was Dr. Ogilvie-Harris’ opinion that Matt would be better working at jobs that were light to sedentary in nature rather than ones that placed demands on the lower limbs. I accept that opinion.

[67] Further, I accept the evidence of Dr. Ogilvie-Harris that Matt will probably develop symptomatic osteoarthritis in the left knee joint within 20 to 30 years. I find that if this occurs there is a 50% probability that Matt will require a total knee replacement, with a possibility that he may require some other treatment that is less invasive than a total knee replacement.

[68] Regarding residual scarring, I find that Matt has a small scar in his left eyebrow that he says bothers him. I find that this eyebrow scar is a minor irritation for Matt. Matt also has more extensive scarring on his left leg, and I accept Matt’s evidence that the scarring in his eyebrow bothers him more than the scarring on his leg.

[69] Considering all of these circumstances, I assess general damages at $75,000.

FUTURE ECONOMIC LOSS

[70] Matt is able to do all of the usual chores required to maintain his household at present. However, Matt brings a claim for the cost of hiring someone in the future to do some household chores. Matt submits that his injuries will worsen in the future such that he will not be able to do his household chores himself.

[71] The only peripheral evidence on this issue was from Dr. Ogilvie–Harris, who testified that Matt would probably develop osteoarthritis in his left knee in 20 to 30 years. If so, Matt may require surgical intervention that could include knee replacement surgery.

[72] In order to succeed on this claim, Matt must prove, “… a real and substantial risk of future pecuniary loss…” See Schrump v. Koot (1977), 18 O.R. (2d) 337, at pp. 340-43. In this case I find that there is a real and substantial risk that Matt will develop osteoarthritis in his knee, and that he could require one or possibly two knee replacements. If so, there may be some period of time during which Matt will need assistance with household chores.

[73] I received no evidence as to the amount of time that Matt would require assistance, no evidence of the cost of the assistance, and no evidence of what Matt would be able to do and not do. But, I am convinced that there is some merit to this claim. Therefore, I assess the claim at $2,500, which represents services costing $10,000 discounted by 75% for contingencies.

[FAMILY LAW ACT](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html) CLAIM

[74] Robert brings a claim under the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”) for the loss of guidance, care and companionship that he would have received from Matt if he had not been injured. Robert has had no economic loss, and Robert still maintains an excellent relationship with Matt.

[75] Robert testified that at the time of Matt’s injuries, he and Matt’s mother were separated, and that Matt resided alternate weeks with each of them. After he was discharged from the hospital, Matt resided exclusively with his mother for about one month while he was off school. Matt’s mother took a leave of absence from her job to care for Matt while Robert continued to work full time.

[76] As for the caregiving that he provided for Matt, Robert testified that Matt’s mother did the bulk of the caregiving while he worked. Robert assisted in taking Matt back and forth to hospitals for a few months, but he said that this did not involve an inordinate amount of his time.

[77] In my view, the FLA claim of Robert involves a small amount of loss of companionship for about one month, and Robert’s time in taking Matt to some medical appointments. It is a small claim that I assess at $1,000.

SUMMARY AND CONCLUSION

[78] In conclusion, I find that there is no liability on the City of Hamilton for damages as a result of the injuries suffered by Matt Pierce when he fell in Scenic Drive Park in the early hours of October 1, 2005. The plaintiffs’ action is dismissed.

[79] If there is an issue regarding costs, either party may make submissions in writing directed to the trial coordinator at Welland within 20 days of the date of this decision.

Henderson, J.

Released: October 17, 2013

COURT FILE NO.: CV-308660

DATE: 2013-10-17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Matthew Pierce and Robert Pierce

Plaintiffs

– and –

City of Hamilton

Defendant

REASONS FOR JUDGMENT

Henderson, J.

Released: October 17, 2013