COURT FILE NO.: CV-09-377076

DATE: 20130207

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JOSE TRINIDAD AHUMADA LOPEZ

Plaintiff

• and -

CITY OF TORONTO

Defendant

Tullio A. D’Angela, for the Plaintiff

George R. Wray, for the Defendant

HEARD: January 7 to 11 and January 14, 17 and 18, 2013

SPENCE J.

REASONS FOR DECISION

1The Plaintiff, Jose Trinidad Ahumada Lopez (“Mr. Lopez”), claims against the Defendant, the City of Toronto (the “City”), for damages for injuries suffered as a result of a slip and fall on ice in Nathan Phillips Square in Toronto on December 30, 2008. He suffered a fracture of the tibia and fibula of his right leg.

The Evidence of the Plaintiff and his Son

Background to the Accident

2Mr. Lopez is a Mexican citizen who resides in the State of Tabasco in southern Mexico. He was born in 1946. He is a retired civil engineer. He has always lived and worked in Mexico. He speaks Spanish and he gave his evidence through an interpreter. He has had two brief trips abroad, to Texas and to Belize. Before his visit to Canada in December of 2008, he had had trips to Canada, all related to his son Abraham, who moved to Canada in 2000.

3In mid-December 2008, Mr. Lopez came to Toronto to visit his son and daughter-in-law and their two young children and to enjoy Christmas here along with his wife who had arrived for the visit somewhat earlier. His daughter also came from Mexico for the visit.

4In Toronto, he and members of the family went for walks and played with the children in areas where there was snow. His son outfitted Mr. Lopez with winter outerwear and boots with rubber soles.

5Abraham warned his father at the outset of the visit about the need to take care in conditions of snow and ice. He was aware of the need to avoid ice and snow on sidewalks because of the hazard of slipping and falling.

6The family travelled to Blue Mountain for an overnight visit there on December 23 and went for walks in the snowy conditions there.

7On December 30, in the late morning, Mr. Lopez, his wife and his son and daughter set out from Abraham’s home for a visit to downtown Toronto to see various sights. Around midday, they walked from the Eaton Center to the Old City Hall on the north side of Queen Street and then crossed Bay Street and walked along Queen Street to visit Nathan Phillips Square and see the new City Hall. It was daylight and sunny, and it was not snowing or raining. Mr. Lopez was wearing the boots his son had given him. About 1:30 p.m., they arrived on the eastern walkway into the Square and turned right into the walkway and proceeded toward the Square.

8Just after they passed a row of yellow posts or bollards fixed in the pavement of the walkway, Mr. Lopez slipped and fell in an area where there was a patch of ice.

The Accident: (1) On the Walkway into the Square

9In his evidence-in-chief, Mr. Lopez said that on their walk along the walkway into the Square before the accident occurred, his son was walking with his wife and his daughter ahead of him.

10In his cross-examination, Mr. Lopez said his son was walking a few paces ahead of him just before he slipped and fell. In his examination for discovery, he had said that his son’s wife and daughter were walking slightly behind him. In cross-examination, he said he recalled that they were in fact walking ahead of him.

11Abraham said that he was walking ahead, followed by his sister and his mother and then his father.

12Mr. Lopez said that in the moments before the accident his son did not warn him to be careful walking on snow and ice. However, in his examination for discovery, he agreed that just before he fell, his son pointed out to him that there was ice and he should be careful. When this answer was put to him in cross, he adopted it.

13In his cross-examination, on being told of this evidence given by his father, Abraham denied that he warned his father about the ice he had seen.

14In cross-examination, Mr. Lopez said his son did not first step on the ice where Mr. Lopez then stepped and fell. In his examination for discovery, he had said the contrary and, when this was put to him, he adopted his answer on discovery.

15Abraham said he did not know if he had walked on the patch where his father had slipped.

The Accident: (2) The Slip and Fall

16In his examination-in-chief, Mr. Lopez said that, as he continued along the walkway just past the posts while he followed his son, for a few seconds he saw underfoot a patch that looked to him like snow as he then lost his balance, despite his effort to keep balanced and he felt his right leg turning as he fell. After he fell, he felt a cold patch on the ground where he had fallen. His son and his son’s wife told him he had fallen on a sheet of ice.

17Mr. Lopez said in cross-examination that at the time of his examination for discovery in July of 2011, when he identified the patch as a “patch of ice”, he did so because his son and his son’s wife had told him that the patch on which he had slipped and which he had taken for snow, was in fact ice. Mr. Lopez said the patch he saw could have been snow or ice: it appeared to be similar to snow.

18He acknowledged in cross-examination that in his examination for discovery he had agreed that he saw the ice he allegedly fell on before he fell on it. He said he fell quickly and he recalled that he thought what he stepped on was snow. He did not recall seeing anything that looked like ice.

The Condition of the Walkway

19In chief, Mr. Lopez said there was a layer of snow covering the whole of the walkway from one side of the bollard to the other. The place where he fell was just north of the two most easterly of the five bollards installed across the walkway. He did not know how high the snow was.

Events after the Accident

20Soon after the accident, two paramedics arrived and took Mr. Lopez on a stretcher to an ambulance and then to St. Michael’s Hospital.

21While that effort was underway at the scene of the accident, two men in what appeared to Abraham to be City uniforms arrived and began to apply salt to the surrounding area.

22Around 3:00 p.m. the same day, Abraham returned to the scene and took photographs.

The Surgery and Subsequent Treatment

23At the hospital, Mr. Lopez was operated on for a compound fracture of the tibea and fibula of his right leg. This involved the placing of a metal rod in his leg extending from above his ankle almost to his knee. The metal rod is still there.

24He was discharged after 24 hours. Two weeks later, he returned to Mexico.

25In Mexico, he received treatment from a specialist, Dr. Contreras. After four visits to the doctor, he was walking independently without a crutch.

26Dr. Contreras referred Mr. Lopez to rehabilitation specialist, Dr. Omera. He received acquatherapy treatment for two weeks. He then followed recommended massage treatment for two further weeks.

27Since then, he has taken no medication regularly for the results of the accident, except that he takes medication from time to time for pain which he experiences in his leg. The medication is prescribed by his son in Mexico who is a doctor.

28The only other treatment he took as a result of the accident was for an ingrown toenail, for which he had surgery about one year later and which causes no problem now.

The Present Condition of the Plaintiff

29Mr. Lopez experiences pain in his right leg between his knee and his ankle. The area is swollen and bothers him frequently.

Employment and Retirement following the Accident

30Mr. Lopez returned to full time work with his employer at the same rate of pay as before the accident. In 2010, his employer decided to retire Mr. Lopez. There is no suggestion that his retirement was prompted by his condition following the accident. He receives a pension that is not affected by the accident or his injuries.

His Activities

31Mr. Lopez experiences some limitation in his ability to take part in various activities which were a regular part of his life prior to the accident.

32These activities include recreational, social and domestic activities and forms of exercise.

Condition of the Walkway: Other Evidence

Mr. Kovaci, an attending paramedic

33The ground was dry. The path was clear with one tiny patch of ice where Mr. Lopez slipped and a few other patches of ice. Some of the ice had a light dusting of snow, but the ice was obvious once he looked at it. The ice was thin. There was some snow to one side of the area where Mr. Lopez slipped.

34The condition of the walkway was as shown in Exhibit 16.

Mr. Nelles, a certified engineering technologist

35The width of the walkway north of the Queen Street sidewalk was 29’.

Mr. Woodman, a City security officer

36The ground was dry. There was a small patch of ice where Mr. Lopez was sitting on the ground. Abraham said his father had looked up and had fallen as he did so.

37The patch of ice was about 16” wide, and isolated. It was close to the centre of the walkway, in a high traffic area. He had patrolled by the area earlier and he had not deemed the ice to be a hazard.

38He did not recall seeing ice to the south of the bollards. A photo shows a small patch of ice there.

Mr. Kamin, a City security officer at the time of the accident

39The day was partly cloudy. There was no precipitation of rain or snow.

40The walkway was 30 to 35 feet wide.

41Mr. Lopez was in front of (to the north of) the second bollard from the east.

42The ground in the area of the fall was dry and clear. He saw a patch of ice where Mr. Lopez was sitting.

43He had patrolled the area earlier. He did not recall seeing the patch on his patrol. If he had seen the patch of ice, he would have deemed it to be a hazard and would have reported it.

44He did not recall seeing snow or ice south of the bollards, as shown in Exhibit 14 at pictures 17 and 21.

45The patch of ice was in a high traffic area. It was an area of concern as to safety.

Mr. O’Reilly, City maintenance foreperson

46There had been no need to clear snow and ice prior to the accident or to salt since December 20th.

47The patch of ice in Exhibit 22, picture 1, was about 3’ by 3’. He did not think it was a hazard. He had no difficulty walking in the area.

48The patch of ice probably resulted from a snow pile in its location. The location is in an area of pedestrian traffic. The snow is piled where it is convenient to the operator of the Bobcat plow used for winter maintenance. He did not recall seeing ice in the area of the accident or south of the bollards. There was some ice in scattered patches in the Square.

Nathan Phillips Square and the location of the Accident

49Mr. Lopez fell on the pavement in the Square in the southeast corner of the Square after walking north a short distance on the paved entrance walkway into the Square from Queen Street on the south side of the Square, close to Bay Street.

50The Square extends over an area of about 100,000 square feet or 4 acres. City Hall is located in the northern part of the Square. To the south, in the winter, a skating rink is located.

51The walkway on which the accident occurred is about 29 feet wide from west to east. It is bounded on the west by a structure housing an entrance into the subway and on the east by chess tables and an area that is planted. A row of five metal posts or bollards is located at the south end of the walkway. The bollards are about 5 feet apart. The row of bollards extends to about 2 feet from the westerly and easterly boundaries of the walkway.

52The accident happened in the area a few paces north of the two most easterly bollards, probably about 10 feet from the most easterly boundary of the walkway.

The Condition of the Walkway at the Accident Location

53The walkway was mainly dry and clear of snow and ice.

54There was some snow in a few patches close to the eastern boundary, south of the bollards.

55North of the bollards, in the area where the accident occurred, there was one patch of ice which was about 2-1/2 to 3 feet wide from west to east, extending about two feet from south to north. The patch is the patch of ice in question in this case.

56There was no other ice or snow on either side of the patch to the east or west or in the area immediately south of the patch, north of the bollards.

57To the north of the patch the walkway was clear, as was the payment in the south and eastern areas of the Square adjacent to the walkway. (There was no evidence as to the condition of the balance of the Square.)

The Inspection and Maintenance System of the City

58The senior City staff person in charge of inspection and maintenance of the Square is the operations supervisor for the downtown locations of the City. The current operations supervisor is Mr. McGuffin. He has held the position for two years, since 2011. His predecessor was Mr. Karpio, who held the position at the time of the accident. The maintenance foreperson for City Hall and the Square reports to the Operations Supervisor on maintenance of the Square.

59The current maintenance foreperson is Mr. O’Reilly. He has held the position for 13 years. A staff of at least 6 maintenance workers report to him. Their task is to keep City Hall and the Square safe for use by the public and employees. In the winter, this work includes maintenance and inspection of the Square to keep it clear of snow and ice for such use.

60There are also three security officers whose task is to patrol the Square for safety, including snow and ice conditions. They report unsafe conditions to the maintenance staff.

61City staff does not try to clear the Square of all snow after a snowfall, on the basis that it would be prohibitively expensive to remove all of the snow from the Square. Instead, the City uses a Bobcat tractor with an 8-foot wide bucket attached to plow 16-foot wide pathways between City Hall and a number of points of entrance into and exit from the Square along its perimeter. The operator of the plow deposits the snow from place to place in the Square from time to time during the course of the plowing, as is convenient to the operator. The snow piles are then left to melt or be dealt with as necessary in the ordinary course of the regular maintenance and inspection.

62The patch of ice is probably the residue of one such snow pile.

63At eight o’clock in the morning, the maintenance staff make their first round of the entire outside area of the Square to check for unsafe conditions. Mr. O’Reilly also patrols the Square at some point in the morning for the same purpose. After the first patrol, the security officers patrol the Square throughout the day.

64To deal with the hazards in the Square, the staff use the Bobcat tractor, snow blowers, push snow shovels and salt spreaders.

65Daily records are kept of the rounds and the snow removals. The records of the rounds for December 30, 2008 are missing. No explanation was suggested for their not being found. There is no suggestion of spoliation. Mr. O’Reilly testified that the rounds are done each day. Two of the three security officers gave evidence. They said they had made their rounds for that day. The snow removal records for the period from December 7, 2008 to the end of the year were entered in evidence. They show that snow removal and salting were conducted on various days up to December 22, but not after that prior to the occurrence of the accident on December 30. Mr. O’Reilly said there was no snow removal on those days because none was needed.

66On December 30, after the accident, staff broke up the ice and salted the area.

The Adequacy of the System and its Operation

67In considering the adequacy of the system and its operation, it is necessary first to determine the standard of care which applies to the conduct of the City and then to determine whether the system and its operations met that standard.

68The standard of care is effectively set out in section 3 of the Occupiers Liability Act, R.S.O. 1990, c. O.2 which prescribes the following duty of care for an occupier:

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.

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

69The existence of a system in and of itself may be insufficient to discharge an occupier’s duty of care. In Gardiner v. Thunder Bay Regional Hospital, [1999] O.J. No. 833 (Gen. Div.) at para 26 the plaintiff slipped and fell in a public parking lot. The Court summarized the law as follows:

…where there is a known danger in this case ice and snow conditions in a public parking lot in Ontario, and specifically Northern Ontario, in February, then the owner must have a reasonable system in place to ensure users will be reasonably safe from slipping and falling due to the weather conditions. Furthermore, the system must be functioning properly. If a plaintiff can establish on a balance of probabilities that such a system is not in place, or is not working properly, then he will succeed, otherwise he will fail.

70A properly functioning system requires compliance by those who are responsible for its execution. The occupier’s agents and/or employees are required to conduct inspections and maintenance within reasonable time periods. (See: Arial v. 882657 Ontario Inc., [2009] O.J. No. 3025 (S.C.J.) at paras. 30-32.)

71The Square is an area of heavy pedestrian traffic, including tourists among others. It is foreseeable that the traffic will be heavier at entrance and exit points where it will likely be more concentrated.

72The overall size of the premises is a relevant consideration for determining the extent to which the occupier is reasonably expected to inspect and maintain said premises. In Przelski v. Ontario Casino Corp., [2001] O.J. No. 3012 (S.C.J.) at para. 41, the defendant occupier was found to have discharged its duty of care despite the fact that the plaintiff fell on a patch of ice. Quinn J. held that a “few slippery spots” on a 2-acre lot was reasonably expected.

73The size of the premises does not diminish the occupier’s duty to maintain the areas which endure heavy pedestrian traffic. In Waldick v. Malcolm, the plaintiff slipped on the premises which were approximately 3 acres in size. Iacobucci J., affirming the lower court decisions noted as follows:

While the Act in no way obliged [the defendants] to salt or sand “every square inch of their parking area”, Austin J. was of the view that doing nothing fell short of the reasonable care requirement. Blair J.A. agreed, noting the duty was limited only to salting or sanding that part of the parking area next to the entrance.

(Waldick v. Malcolm, 1991 8347 (ON CA), [1989] O.J. No. 1970, (C.A.) at para. 28)

Post-accident remedial measures can be considered in determining whether the occupier met its standard of care. The expense and ease of doing the remedial work may properly affect the determination of what constitutes reasonable care in the circumstances: (See: Sandhu (Litigation guardian of) v. Wellington Place Apartments, 2008 ONCA 215, [2008] O.J. No. 1148 (C.A.) at para. 56.)

74Mr. Lopez submits that the City’s system was deficient with respect to the piles of snow created in the course of the plowing of the pathways in the Square. Specifically, the first criticism is that no direction was given to operators as to where they should locate the piles of snow or that in deciding where to leave the piles, they should take into account public safety. The second criticism is that by simply leaving the piles of snow in place, there was a foreseeable risk that, with melting and freezing, the piles could leave residues of snow and ice in hazardous patches.

75It is not apparent how the City could practically give direction to the plow operators about where to leave the piles of snow. At the time of plowing, when there was snow in the Square, apart from on the plowed pathways, it would seem that one place in the snowy area beyond the pathways would not be any more or less dangerous than another.

76Mr. McGuffin said that snow piles should not be left in high traffic areas. Mr. O’Reilly said that it was left up to the Bobcat operator to pile the snow where it was convenient. It was submitted that the system was deficient because the Bobcat operators were not instructed not to leave snow piles in high traffic areas. The evidence considered above is not sufficiently specific to warrant that conclusion. The snow piles are left by the Bobcat operator during the process of clearing paths, so without evidence to the contrary, it cannot be inferred that they would leave a snow pile on a cleared path. The cleared path would be the area that would receive the heaviest traffic until the snow in the Square had melted sufficiently to allow traffic to move away from the previously cleared the paths.

77Once the snow in the Square began to melt and some of those areas started to appear to be passable, residual patches of ice and snow could be left in those areas. Consequently, it would be important to conduct the daily round of inspection to identify hazardous areas and report them so that the areas could be made reasonably safe.

78In view of these considerations, it is not shown that there was any deficiency in the system as such ‑ i.e. without addressing the manner in which it was in fact carried into operation. The question becomes whether the manner in which that was done was deficient.

79The plaintiff submits that the inspection and maintenance systems were not carried out with reasonable care because in the days leading up to December 30 and on the morning of December 30, the inspection that was carried out failed to result in the reporting of a hazard in respect of the patch of ice in question and therefore nothing was done to remove the hazard, which could have been done easily and at little cost.

80There is no evidence that the patch of ice was noticed on any inspection prior to December 30 although it would probably have been apparent earlier. Security Officer Woodman testified that on December 30 he saw the patch of ice, but he did not consider it a hazard because the walkway was so wide. Mr. Kamin, who was a security officer at the time, said he had patrolled the area and had not noticed the patch of ice, but would have considered it a hazard if he had. Mr. O’Reilly said he would have passed by the area, but he did not recall seeing the patch of ice or seeing ice in the area. He said he would not have considered the patch of ice to be a hazard. He said he had no trouble waking the area.

81Mr. McGiffin said the patch of ice was not a hazard because the walkway was about 29 or 30 feet wide and the rest of the walkway was clear, with the ice patch on one side of the walkway, such that there was a 30-foot wide clear area to the west of it and an 8-foot wide area to the east. It would be easy to walk around the patch of ice.

82However, the fact that there was ample room to either side of the patch of ice to allow a pedestrian to walk around it does not by itself resolve the question of whether it was a hazard; i.e. an unsafe condition. That would depend on whether it was so visible that it would be unlikely that a person would walk on to it without first seeing it in time to avoid it. In the present case, the patch of ice was situated on the eastern side of the walkway, which could reasonably be expected to receive the traffic of a number of pedestrians entering or leaving the Square at the same time and side by side. Such traffic could reasonably be expected to be heavy enough to obscure the forward view of pedestrians in the walkway, with the result that they might not see the patch of ice in time to avoid it even on a day when there was little or no snow beside it.

83For the above reasons, the patch of ice was an unsafe condition.

Whether the City was in breach of its Duty of Care

84Pursuant to section 3(1) of the Occupiers Liability Act, the duty of the City was to take such care as in all the circumstances was reasonable to see that pedestrians are reasonably safe while on the premises.

85The City was able to remove the patch of ice very readily after the accident by breaking it up and salting, which were means it employed regularly to deal with unsafe ice and snow conditions, so the fact that it was able to do so readily and did not need to resort to extraordinary or unusually costly measures is a factor that suggests that having to take such care was well within the ambit of “reasonable care”. Also, the City had a system of maintenance and inspection to enable it to identify and remove unsafe ice and snow conditions, which also suggests that having to take the measures it did was well within the ambit of “reasonable care”.

86Section 3(1) of the Occupiers Liability Act requires a determination whether, as a result, the area of where the patch of ice was situated was “reasonably safe”. An area might perhaps be “reasonably safe” even though a condition in it was unsafe. For example, an area with a patch of ice in a part of the Square which could not reasonably be expected to receive any ordinary pedestrian traffic might well still be considered “reasonably safe”.

87The fact that the patch of ice was situated in the middle of a pathway that would reasonably be expected to receive heavy traffic indicates that the area where it was situated was not “reasonably safe”.

88Accordingly, the City was in breach of its duty of care with respect to that area of the walkway.

Causation

89The question here is whether the unsafe condition created by the patch of ice caused the plaintiff to slip and fall and thereby incur the injury he suffered as a result.

90The Plaintiff submits that he slipped on the patch of ice. The City submits that the evidence of the Plaintiff shows that he does not know whether he slipped on the patch of ice and accordingly, he has not proved causation.

91The Plaintiff’s evidence about his fall varied in respect of some particular facts such as whether he saw snow or ice, whether he could identify the patch of ice in question as the snow or ice on which he fell and whether there was snow on the pavement beyond the particular place where he fell. However, taking into account all of his evidence, together with that of his son and Mr. Kovaci, the attending paramedic, and the photographs of the patch of ice and the area of the fall taken by Mr. Woodman shortly after the accident occurred, the evidence establishes that the Plaintiff slipped on the patch of ice in question.

92The City submits that the Plaintiff saw the ice and stepped on it before he fell and accordingly, it was the Plaintiff’s action in knowingly taking that step that was the cause of his accident and not the mere presence of the patch of ice.

93This argument is not to be confused with an argument that the Plaintiff was contributorily negligent. It is rather an argument of the type traditionally known in tort law as “novus actus interveniens” or “intervening new action”. The theory of this principle is that where, in situations such as the one at issue, a new action intervenes by someone or something other than the alleged tortfeasuor and that intervening new action is sufficient to break the chain of causation initiated by the breach of duty of the alleged tortfeasor, that chain of causation ceases to operate and is effectively replaced by the intervening action.

94In the present case, all that the evidence shows about the Plaintiff’s knowledge or awareness of the patch of ice on which he fell is that he saw it as he slipped or just an instant before. The evidence does not show that he saw the ice in time to refrain from taking the step which initiated his slip and fall. Accordingly, the chain of causation started by the breach by the City of its duty of care was not broken.

Liability of the City

95For the above reasons, the City is liable in negligence to the Plaintiff for its breach of duty causing the Plaintiff to slip and fall.

Contributory Negligence

96The City submits that fault or negligence on the part of the Plaintiff should be found to have contributed to his damages and that the Court, pursuant to s. 3 of the Negligence Act, R.S.O. 1990, c. N.1, is required to apportion the damages in proportion to the degree of fault or negligence found against the parties respectively.

97For the reasons set out below, negligence on the part of the Plaintiff with respect to his slip and fall contributed to his damages.

98From the photographs taken shortly after the accident and those taken by Mr. Lopez’s son later in the day, it is evident that the patch of ice was sufficiently visible from at least about 5 feet away and perhaps further, which means that the Plaintiff had ample time to see and avoid the patch of ice unless his view was obstructed. He said that he was following his son, but the presence ahead of him of a single person would not naturally be sufficient to block his view. There was no suggestion that it did so or that anyone or anything else blocked his view. Accordingly, although he did not see the patch of ice, he reasonably ought to have seen it. The fact that he did not do so shows that he was not keeping a proper lookout. The Plaintiff had been alerted earlier in his visit by his son to the need to be careful about ice and snow.

99The city failed to recognize the unsafe condition of the patch of ice and remove it. The Plaintiff failed to see the patch of ice when he should have and slipped and fell on it. The City and the Plaintiff were equally negligent. The damages are accordingly to be apportioned 50/50.

Damages

General Damages

100The Plaintiff suffered a compound fracture of the tibea and fibula of his right leg. He required surgery in Toronto which involved the mention of a metal rod in his leg which is still there. Other particulars of his treatment and his present condition are set forth above.

101An issue was raised about pain in the Plaintiff’s knee and what problems that may give rise to in the future, but it appears from his evidence that his knee is not giving him trouble now.

102Expert opinions were provided by Dr. Tavazzani for the Plaintiff and by Dr. English for the City. In view of the very considerable recovery that the Plaintiff has made, it does not seem likely that there is a prospect of material difficulty in the future, except that the Plaintiff continues to experience some pain and that may well continue.

103In view of the seriousness of the accident on the one hand and the extent of the recovery of the Plaintiff on the other, I would fix general damages at $45,000.00.

Special Damages

104The expenses incurred by the Plaintiff that should be recognized as special damages are set out in Exhibits 8, 9, 10 and 11. The total of those expenses is the amount of the special damages to be awarded to the Plaintiff.

Conclusion

105For the reasons set out above, the City is liable in negligence to the Plaintiff. The damages of the Plaintiff are the total of the general and special damages determined as set forth above. The Plaintiff is contributorily negligent as to 50 percent.

106Judgment is to go in favour of the Plaintiff accordingly.

107If necessary, written submissions may be made to me about costs. The Plaintiff should make the first submissions within 30 days of the release of these reasons, with any responding submissions from the Defendant to be made within 15 days after the Plaintiff’s, and any reply submissions within 15 days afterwards. It would be helpful if a copy of any submission could be sent by e-mail to my assistant.

Spence J.