ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-40483
DATE: 2015-06-08
BETWEEN:
Blanche Worthey, Justin Worthey,
Lana D’Arstrella, and Dougles Worthey
Plaintiffs
– and –
City of Hamilton
Defendant
Mr. R. J. Hooper, for the Plaintiffs
Mr. T. R. Schillington, for the Defendant
HEARD: May 19 and 20, 2015
GLITHERO J.
reasons for judgment
[1] The plaintiff Blanche Worthey brings this action seeking damages for injuries sustained in a trip and fall accident which occurred on a city sidewalk on Upper Sherman Avenue in Hamilton on September 13, 2012.
[2] The remaining claimants are the grandson, granddaughter and son of the plaintiff respectively and seek damages pursuant to the Family Law Act.
[3] I was advised at the outset of trial that the parties had agreed upon the quantum of damages in the amount of $275,000.
Evidence on Behalf of the Plaintiff
[4] Blanche Worthey testified that her date of birth is October 5, 1925 and that accordingly she is 89 years of age at present. She has been widowed for approximately 30 years. At the time of her fall on September 13, 2012, she lived alone and totally independently in her own home at 433 Upper Sherman Avenue.
[5] That day she was planning to travel later in the day to Bancroft. That morning she decided to run a few errands, going to a drug store, a ladies’ clothing store, and then got a taxi to bring her home. As the taxi driver drove along Upper Sherman he overshot the plaintiff’s home. He complained about having to back up. At the plaintiff’s suggestion, he stopped in front of a house which is two houses north of the plaintiff’s house. She paid him the required fare, got out, crossed a narrow grass boulevard and started walking on the sidewalk towards her home. As she walked on the sidewalk past the driveway for the home next to hers, 431 Upper Sherman, she tripped and fell, ending up on the driveway just to the east of the edge of the sidewalk.
[6] At the time of the accident, she was in good health. She had very good eyesight, no difficulty with walking, and was able bodied. She did all her own housekeeping, looked after all her personal hygiene requirements, did her own grocery shopping and had no illnesses or disabilities. As an example of her good condition, she testified that in June 2012, she walked from Simcoe to Port Dover for lunch, and then back to Port Dover the same day. She did not drink or take any drugs that affected her physical abilities. She experienced no dizziness, and no problems with her balance.
[7] During the fall her left side had hit the ground. After her fall, she was unable to get up so she yelled for help. Mrs. Worthey was unsure which of her feet had hit something on the sidewalk and caused her to fall. She testified that there was a hole in the sidewalk. Her left arm would not support her efforts to raise herself, which turns out to be the result of a left broken wrist. She was in unbearable pain, not only because of the wrist, but as it turns out because her left hip was badly fractured and required a total hip replacement.
[8] As she lay there, a total stranger stopped his vehicle and assisted by calling 911 for help and by staying with her, talking with her, and trying to keep her calm. Another male driver also stopped and assisted by bringing a blanket and putting it under her face to make her more comfortable as she lay on the asphalt driveway. She testified that by the time the paramedics showed up her son had shown up as well and also testified that she was unable to hear or see much, as a result of the severe pain she was experiencing. In total, she spent some 42 or 43 days in the hospital and then a rehabilitation centre.
[9] In cross-examination, her evidence is that she had only taken a few steps on the sidewalk, after crossing the boulevard, before she fell. At the time she was wearing sandals with low heels. She testified that she felt a hole in the sidewalk through the sole of her shoe when she stepped into the hole and then she fell over. She agreed that it was not her who had marked an ‘X’ on a photograph of the portion of the sidewalk in question, but she believed her son, Douglas, may have marked that ‘X’. She testified in cross-examination she was not really certain where exactly she had hit the hole, but the side of her foot went into it and she fell. In cross-examination she testified she was not really watching the sidewalk as it was a beautiful day. She often walks from her home on Upper Sherman in a southerly direction but seldom walked north from her home. On this occasion, because of the taxi’s actions, she was walking south, but from a direction just north of her home, which is an area she normally did not travel. She did not go back to look at the sidewalk in the location where she fell after the accident had occurred.
[10] Douglas Worthey is the son of the victim and is 61 years of age. His evidence is that the photograph of the area of the sidewalk contained in Exhibit 2 at page 36 is the one where he marked an ‘X’ to indicate the location of the trip and indicates that he put the ‘X’ where his mother showed him to put it.
[11] Mr. Worthey worked for 13 years in the forensic pathology department at Henderson Hospital in Hamilton, working closely with the pathologists there. Thereafter, he started work with the Hamilton Police Service in 1990 as a Special Constable working at the John Sopinka Courthouse here in Hamilton.
[12] Mr. Worthey testified that while working in the pathology department he was taught by the pathologist to be very accurate when taking measurements, how to take measurements and how to take photographs of wounds or other evidence relevant to the forensic pathologists. As a Special Constable he testified that he has been trained about the obligation to keep a notebook and has been taught to be sure that the notes made are accurate and correct. He testified in-chief as to his mother’s good health, her independence and her ability to do everything for herself.
[13] He was at work on the day of the fall, but received a phone call and immediately went to the scene to find his mother lying on the asphalt driveway, immediately east of the sidewalk, in front of 431 Upper Sherman. The two male citizens who stopped to help his mother were still there. As emergency personnel had still not arrived, he phoned for them again and expressed his displeasure at the slow response , stayed until they arrived, and then travelled to the hospital to be with his mother. He described how it was obvious to him, from the position of her leg as she lay on the driveway, that her hip was broken. He testified that at the scene, his mother couldn’t tell him about the call as she was in too much pain, and was crying and repeating how much her body hurt. As emergency personnel arrived and were looking after his mother, Mr. Worthey testified that he looked around trying to see any reasons for her to have tripped and right away saw a portion of the sidewalk sticking up, and could not see any other possible cause.
[14] He testified that he put an arrow to indicate the location of the portion of the sidewalk that was sticking up in the photograph found at page 12 in Exhibit 2.
[15] Mr. Worthey went back to the scene of the fall five days later on September 18, 2012. At that time, he had no idea about the law regarding trip ledges and how high they generally had to be to be actionable.
[16] He took the photograph at page 14 in Exhibit 2 which shows that he laid a carpenter square on the higher sidewalk slab so as to show the drop from the bottom of the square (the level of the upper slab) down to the top of the lower slab. The other photographs at Tab 2 were taken by him and were intended to show the area of the fall, as well as photographs of the discrepancy in height as between the higher and the lower slabs where he believes his mother fell.
[17] The photograph at page 7 of Exhibit 2 is an important one as it shows the height of the trip ledge, meaning the height differential between the higher sidewalk slab and the lower one, using a tape measure. He did this measurement at what he observed to be the highest point of differential and that portion of the sidewalk where he understood his mother tripped. When he saw her lying on the sidewalk, her feet were pointed in that direction. The photograph was taken by placing the camera on the lower slab pointed towards the trip ledge, and taking the picture while he held the tape measure so that the “0” end was on the top of the lower slab. His evidence is that the markings on the tape measure show that the top surface of the higher sidewalk slab was 15/16 of an inch higher than the top of the lower slab. He swears this to be an accurate measurement, accurately reflecting the maximum height differential as between the higher and the lower sidewalk slabs.
[18] In cross-examination, he agreed that he heard his mother testify in court that her foot had gone into a hole in the sidewalk, but he testified that shortly after the accident she had told him that she tripped. His evidence is that this is the only thing he could see on the sidewalk that would account for her tripping. He confirmed that his mother identified for him the location on the photograph and that he put an ‘X’ on it where she indicated.
[19] He testified in cross-examination that he has had to take measurements before as part of his work and understood it was important to be accurate.
[20] He was asked about the brownish appearance of some portions of the upper and lower slab faces. The black material between them is the substance the sidewalk builders insert between the sidewalk slabs. He disagreed, forcefully, with the suggestion that the brown marks evident in the photograph on page 7 are in fact on the surface of the upper sidewalk slab. Instead, he insists that those brown marks are on the edge face of that sidewalk slab, and are part of the sidewalk material and not surface dirt.
[21] Mr. Worthey was shown photographs on pages 18, 19, 20 and 21 of Tab 3, being photographs taken by defence witnesses, but he disagreed with the suggestion that those photographs more accurately show the height disparity between the two sidewalk slabs and he measured it to be.
[22] He agreed in cross-examination that his mother had not said which side of the sidewalk she was walking on when she tripped and fell.
[23] In a question by me regarding the brownish colouration evident in the photograph on page 7 of Exhibit 2, Mr. Worthey pointed out that it was wet on the day that he took the photographs and that the wet condition made the colour differentiation on the edge of the cement slab show up more than it did in the photographs taken by the defence witness at pages 18 through 21, as those photographs can be seen to have been taken on a dry day.
[24] Albert Nauta is the civilian motorist who stopped to assist Mrs. Worthey after she had fallen. He did not see the fall. When he saw her, she was on the ground and could not get up. He stopped, inquired how she was, and confirms that she was in extreme pain and could not get up, so he called 911 and requested an ambulance. He also phoned Mrs. Worthey’s son, Doug, to tell him of his mother’s accident.
[25] Mr. Nauta had nothing to do with taking any measurements of discrepancies in the sidewalk levels. He did testify that as he stayed with Mrs. Worthey he looked around to see if he could see any cause of her having tripped and the only thing he could notice was the unevenness of the sidewalk in the area later measured by Doug Worthey and two defence witnesses. He testified that as he was waiting with her they discussed how she had tripped so he looked to see what cause he could observe. He added that he did not measure the height disparity between the two sidewalk slabs, but volunteered that it “was a good trip area for anyone – especially an elderly person”.
Evidence on Behalf of the Defendant
[26] Paul McShane is a project manager in the road operations section of the defendant and is responsible for concrete and asphalt services, which includes sidewalks.
[27] He looks after the defendant’s sidewalk inspection program and looks after capital projects such as sidewalk replacement. He does so for all of Hamilton.
[28] Mr. McShane explained that at the time of this fall the defendant was in the process of implementing a new inspection program, but was experiencing computer problems in doing so. For this reason, while inspections had been done for the years 2009, 2010 and 2011, there was no inspection done in 2012. An inspection was done again in 2013, but using the old system as the new program was still not working.
[29] The sidewalk inspections were done for the City by an independent contractor called ABC Enterprises, who were hired to walk every kilometre of the defendant’s 2,382 kilometres of sidewalks and to note the observed defects, which he described as being areas of concern involving anything that was in excess of Ontario standards.
[30] His evidence is that the permissible height discrepancy between adjoining slabs of sidewalk concrete is 20 mm.
[31] He testified that pages 19, 20 and 21 at Tab C in Exhibit 1 are the independent contractor’s employee’s field notes.
[32] His evidence is that the inspections are done on the basis that any discrepancies observed to be less than 20 mm in height differential get no attention. Those that are reported by the inspectors as involving differential of 20 mm or more are repaired to make them safe.
[33] Mr. McShane did not make these inspection records. They were made by students employed by the independent contractor. His evidence is that the field notes recorded by the inspecting students do not record any discrepancies for the relevant portion of Upper Sherman where the fall occurred.
[34] He testified that the sidewalk slabs or squares are 5’ x 5’ in dimension. The joints between some of them are expansion joints which have a fiber material between the slabs. He testified that sidewalks generally have a 25-30 year life span and he agreed that the sidewalk slabs will move with frost.
[35] He testified that he knows this general area as he drives through it to and from work. He did not agree that there was heavy pedestrian traffic in this neighbourhood. He also introduced some reports at Tab B of Exhibit 1, which are maintenance records compiled by the City recording complaints and work done. His evidence is that there were no complaints of sidewalk trip ledges for this area.
[36] In cross-examination, he testified that the defendant’s inspection system or policy is to inspect once a year. He agrees that the sidewalk in this part of Upper Sherman was inspected on August 31, 2011, and then not again until January 13, 2013. Accordingly, he agreed that the City did not adhere to its own inspection policy as it did no inspection for 2012.
[37] He agreed that he had not spoken to any of the inspectors whose names appeared on the annual inspection sheets at pages 19 through 22 in Exhibit 1 relating to the inspections for 2009, 2010, 2011 and 2013. He explained that is because those inspectors are agents of the independent contractor. He doesn’t know what they actually did or did not do. He performed no quality control efforts or audits of the work of those four individuals. He did not supervise their inspection work. He could not explain why the inspection reports for 2009 and 2010 showed a discrepancy of 16.9 metres in the length of the same street as between the two inspections on consecutive years. He agreed that the inspector in 2009 walked this portion of Upper Sherman in the same direction that the plaintiff had been walking, whereas for 2010 and 2011, the inspector had walked the same portion of the sidewalk, but travelling in the opposite direction which would make it harder to see a trip ledge.
[38] He understood that these inspectors were supposed to be trained in accordance with a training manual, but he doesn’t know whether they were. In 2013, the inspector walked the material portion of the sidewalk travelling the opposite direction to which the plaintiff had travelled.
[39] Upon being shown some of the pictures taken by Douglas Worthey, Mr. McShane agreed that there was a gap evident under the arm of the carpenter’s level, which was sitting on the surface of the upper slab, and projecting over the lower slab. His evidence is that the City does not send anyone out to make repairs if the difference in the height of two adjoining sidewalk slabs is less than an inch.
[40] It was pointed out to him that the City’s representative produced for purposes of examination for discovery, had testified that the City’s policy was to do repairs where the height differential is ¾” or more. He maintained that in his opinion the City’s rule was 1”, rather than ¾”. At another point he testified that the City’s rule is 20 mm difference, and that is the standard the City uses.
[41] He agreed that a height differential of 15/16” is over the City’s limit and would trigger a repair.
[42] In terms of the level of pedestrian traffic, he agreed that the City does not measure or keep track of such traffic and he agreed that in this area of Upper Sherman, there is a large park, a school, a large office building and several bus stops.
[43] In cross-examination, he agreed that cement sidewalk slabs can settle if there is a lot of water underneath the slab as a result of either an infrastructure failure, or because of frost.
[44] He agreed with the suggestion that 19 mm is the equivalent of ¾” and yet the City’s trigger point for repairs if a height differential of 20 mm. His evidence is that he understands that the inspections are done by the students by visual means only, that they walk the street in question and “eyeball” any discrepancies and estimate the height differentials.
[45] Ron Mol has worked for the City of Hamilton for 27 years and for the past 9 years has been a district investigator with responsibilities to investigate litigation claims arising in his district, which includes the location of this incident. On November 6, 2012, he attended at the location and between 10:04 a.m. and 10:06 a.m. took the six photographs located in Exhibit 2 at Tab 4.
[46] The centre piece of his investigation was a wooden ruler with a groove cut through the ruler, running parallel to its length, such as to accommodate a bolt and wing nut assembly. The bolt passed through a hole in a piece of angle iron, then through the ruler, then through a washer, and then is threaded into the wing nut. This mechanism allowed Mr. Mol to place the “0” end of the ruler on the lower slab of sidewalk pavement, and by loosening the wing nut to put the arm of the angle iron on the top of the upper slab of the sidewalk pavement, tighten the nut so as to hold this assembly firm, and then to read the height disparity by seeing where the arm of the angle iron intersected the inch markings on the ruler face. Mr. Mol then placed a camera on the top of the lower sidewalk slab and photographed the measurements obtained by the foregoing methodology.
[47] His photograph at page 29 shows what he measured at what Mr. Mol decided as the highest point of height discrepancy along the joint between the two slabs of cement sidewalk in the relevant area. He measured the height disparity as 5/8”.
[48] Mr. Mol testified that he did not look at the photographs taken by Douglas Worthey or the indications marked on those photographs as to where the plaintiff had fallen. Rather, Mr. Mol just decided by eyeballing the joint between the two slabs of cement sidewalk where the highest point of height disparity was located and measured that.
[49] When asked why he didn’t take quick measurements at other locations just to confirm that his chosen one was in fact the highest, his answer was that his eyeballs are never wrong. He admitted though that his eyeballing of the highest point took place while he was standing and that he did not get down on his stomach to get a level view at the difference between the high and the low slabs. He again confirmed that he did not need to measure in different places because he was right.
[50] When it was suggested to him that questions put to the plaintiff suggested a defence theory relating to a hole in the sidewalk, Mr. Mol agreed he had done nothing to investigate that hole.
[51] He has had this measuring device since 2006, when he started his job as inspector, having obtained it from his former supervisor and he had no idea how old the device is. He refused to agree that the end of the ruler is chipped, although that would appear to be the case from the photographs.
[52] Plaintiff’s counsel attempted to cross-examine him on the accuracy of measurements if the adjustment screw holding the ruler to the piece of angle iron was not tight. Counsel suggested that if not tight, it would allow movement as between the piece of angle iron and the ruler, such as might distort the measurement. In answering the suggestion, Mr. Mol angrily declared that he was not vertically challenged and that he knew how to tighten a bolt. I would have thought the more reasonable and obvious answer would have been to agree that if the bolt wasn’t tightened, there could be movement between the ruler and the piece of angle iron, but then to assert that he always made sure that the bolt was in fact tight before relying on any measurement obtained. When counsel then demonstrated to him, having loosened the bolt, that there could be movement between the two pieces of the apparatus such as to distort the reading, he finally admitted that and then declared that he always tightens the bolt properly. When counsel returned to the issue of the chip on the bottom edge of the ruler, Mr. Mol’s answer was that the chip is off to the side of the bottom edge of the ruler, so it doesn’t matter.
[53] When suggested to him that in the photograph at page 29 the bottom of the ruler is not sitting flush with the top of the lower slab of sidewalk, he would not agree, nor did he agree that the bottom of the piece of angle iron was not flat to the surface of the upper slab of sidewalk.
[54] When it was pointed out to him that the photograph at page 30 shows that the arm of the angle iron overhangs the expansion joint between the two relevant concrete slabs by approximately ¾”, he explained that he did that because the portion of the lower slab closest to the expansion joint is trowelled during finishing to create a rounded edge. Accordingly, he moved the angle iron further out towards the lower slab, which put the bottom of the ruler further away from the joint, because that enabled him to find a more stable and smoother surface from which to take his measurement. He agreed he did not take a measurement with the bottom of the ruler closer to the higher concrete slab and hence closer to the trip ledge. When asked why he didn’t do that, he answered it’s because if he did so, the ruler would not have stood up. That answer makes no sense when you look at the photograph of the scene and the apparatus he used. It would clearly have sat up if the entire length of the arm of the angle iron was on the upper slab, just as in the photograph at page 30 it sits with the ruler upright even though only part of the arm of the angle iron rests on the slab.
[55] He also agreed that he was aware at the time of his inspection that the rule of thumb for a finding of disrepair in these cases is ¾”, compared to his finding of a discrepancy of 5/8”, for a 1/8” difference.
[56] He made no notes of his visit to the scene. He agreed there is public park in the area, a school in the area, and bus stops on Upper Sherman and that Upper Sherman is a major artery.
[57] In cross-examination, Mr. Mol agreed that when his measuring device was placed on the edge of the witness box, the arm of the angle iron did not lie flat on that flat surface. He further agreed he had never had the accuracy of the angle of the angle iron checked or verified.
[58] David Dykeman was at the time an independent adjuster hired by the City of Hamilton on September 19, 2012 to investigate this claim on the City’s behalf. Initially the notice of loss did not give sufficiently precise location information so he sought more particulars from the office of counsel for the plaintiff and obtained some additional information. He then went to the area of the fall and walked the length of the block but testified that he couldn’t find anything of concern in terms of being a hazard. He received further information particularly describing the exact location and re-attended and undertook measurements at the scene on October 19, 2012 and took photographs that day of his efforts.
[59] The material photographs are located in Exhibit 2, Tab 3, at pages 18 through 27. The photographs at page 18 and 19 are a pair in the sense that the first shows the location of his first measurement efforts where the lower sidewalk slab meets the asphalt driveway, and then the photograph at the following page represents his measurement at that location.
[60] Similarly, the photograph at page 20 shows another effort to take a measurement at a distance approximately 6-8” out from the driveway and the photograph at page 21 demonstrates the result obtained. The photo at page 22 shows a measurement at 9 ½ to 11” in from the driveway and the following page shows the measurement result. At page 24, his measurement apparatus is shown located at approximately 12-14” out from the edge of the driveway and the next page shows the measurement result obtained there. Lastly, the photograph at page 26 shows his measuring device set up at 24” in from the edge of the driveway and the photograph at page 27 shows the result obtained at that location.
[61] The device he used consists of a piece of lumber and a wooden ruler. There has been a notch cut in one end in the piece of lumber of a size designed to hold the ruler inset into the piece of lumber, by reason of a tight fit, but without any mechanical fastener. When the piece of lumber is laid on the surface of the top slab, the ruler can then be pushed down through the notch until the “0” end of the ruler rests on the surface of the lower slab. Where the lower edge of the piece of lumber corresponds to the scale on the ruler then demonstrates the height differential.
[62] Mr. Dykeman testified that his findings were that the height differential at the edge where the sidewalk met the driveway was less than half an inch. At 9” out, the height differential was approximately ½”. At 12” out, it was less than ½” and that 2’ out it was 1/16”.
[63] This device is made by the father of a co-worker and Mr. Dykeman has used several of them over the years and is not now sure which exact device he used for this investigation.
[64] Mr. Dykeman agreed that it was by means of a letter from Mr. Hooper dated October 19, 2012 that he learned of the precise location of the fall, and that he attended at the scene the same day. When shown his copy of that letter, which was date stamped as having been received on October 23, 2012, he indicated that perhaps he had been advised earlier verbally of the location.
[65] He also acknowledged receipt of a letter from Mr. Hooper’s office dated November 22, 2012, which enclosed the photographs taken by Mr. Worthey with the correct markings said to be located on them. When asked how he could have had that information at the time he took his photos, when he claimed to have it, he indicated that he could perhaps have been advised earlier of the markings of location on the letter by an e-mail, but he couldn’t remember now.
[66] He agreed the City is one of his biggest clients. He also admitted that he was aware that the general rule of thumb for disrepair in cases of this nature is ¾”.
[67] In cross-examination, it was suggested to this witness that at pages 18 and 19, representing his measuring efforts adjacent to the driveway, that there was an obvious deeper depression just to the right of his measuring device and that if he had measured there, the height differential would have been greater. He refused to agree and admits he did not measure there. In fact, the photograph seems to show a greater disparity in the location suggested by counsel. He also agreed with counsel’s suggestion that his photograph shows that the bottom end of his ruler is not touching the concrete surface of the lower slab at all locations that he measured. He refused to agree that the two photographs showed the measuring device to be leaning to the left, although in my opinion the photograph so demonstrates.
Findings of Fact
[68] In my opinion, on the issue of the height discrepancy as between the 2 sidewalk slabs, the evidence of Mr. Worthey was the most credible. While I am aware that his relationship with the plaintiffs has to be considered in terms of possible bias, I carefully observed his demeanour as well as what he had to say. I was struck by the fact that in my assessment he was very much aware of his training, both while working in pathology and for the police, and he was not a man given to carelessness or exaggeration. In my assessment he told it exactly as he saw it. He answered questions directly and in a forthright manner, without adding extra comments favourable to the plaintiff’s case but not directly called for by the question. I am satisfied that he understood, as a result of this training and his vocation, as well as his character, the importance of both impartiality and precision, and that his testimony reflected both.
[69] I was not impressed with the evidence of Mr. Mol as he is obviously biased in favour of his employer, and unreasonably defensive and resistant when asked any questions that he perceived to be contrary to his position or interests, or those of his employer. He was openly hostile with counsel. The manner of his presentation lacked impartiality. Mr. Mol’s opinion is that he is right because he says so, and that he says so because he is right. His rigidity and defiance undermine his credibility.
[70] While free from open hostility and intolerance, the evidence of Mr. Dykeman, in my opinion, demonstrated a bias in favour of the defendant, who he acknowledged to be a main customer.
[71] With respect to both Mr. Mol and Mr. Dykeman, I am not satisfied from the photographs taken by them, or by the answers they gave and the way in which they gave them, that their rulers were touching the top of the lower slab. Mr. Dykeman acknowledges that it does not appear to be the case in his photographs. He would not admit that his first measurement location demonstrates his apparatus to have been leaning over to the left, although clearly it is in the photograph.
[72] In my best assessment, the evidence of Mr. Worthey is the most reliable of the three. I find the height discrepancy between the top of the lower slab and the top of the higher slab to be 15/16” as testified to by him.
Legal Principles
[73] The plaintiff urges me to draw an adverse inference against the defendant, as a result of its failure to call the 2009, 2010, 2011 and 2013 employees of the subcontractor who allegedly performed a walk-by visual assessment of whether there were any height discrepancies as between sidewalk slabs on the street in question. The plaintiff argues that without such information, we don’t know whether the work was actually done, and even if it does, the type and extent of training given to the “inspectors” or the amount of time and care they took in performing the survey.
[74] The plaintiff relies upon McMaster (Litigation Guardian) v. York (Regional Municipality), [1997] O. J. No. 3928 at para. 28 where it was held that an adverse inference may occur where a party fails to call a material witness who is assessed as particularly and uniquely available to that party and would have been able to give material evidence on the issue.
[75] Aside from the requested adverse inference, there are two other problems with this portion of the evidence. Firstly, no such survey was done for 2012, the year in question, even though the defendant’s own policy was such surveys were to be done annually. Secondly, on the evidence I have, these “surveyors” were supposedly trained to be able to gauge height discrepancies accurately by eyeballing them. If that is so, the evidence of Mr. McShane is that they were trained to take notice of any height discrepancy over 20 mm and to record it on the City chart provided. If I accept the evidence as to their expertise, they would not then have noted a discrepancy of 19 mm, which is the point at which the judicial “rule of thumb” of ¾” comes into play.
[76] In my judgment, no weight can be given to the inspection evidence given the failure to call these “inspectors”, so the court could assess the nature and extent of their training, and the nature and extent of the care and effort exerted by them in the survey work allegedly done.
[77] Counsel agree that s.44 of the Municipal Act, 2001, S.O. 2001, c.25 sets forth the duty of a municipality with respect to sidewalks within it. While the section speaks of highways and bridges, sidewalks are included: Anderson v. Hamilton (City), [2009] O.J. No. 4358 at paras. 21-23.
[78] Counsel agree that the appropriate analysis involves four steps:
(1) Non-Repair: The plaintiff must prove the existence of a “condition of non-repair”: a sidewalk-based hazard that poses an unreasonable risk of harm to an ordinary, non-negligent users of the sidewalk.
(2) Causation: The plaintiff must prove that the condition of non-repair caused the loss in question.
(3) Statutory Defences: If the plaintiff has proven both non-repair and causation, a prima facie case is made out against the municipality, which then bears the onus of proving that one of the three independently sufficient defences in s.44(3) applies.
(4) Contributory Negligence: If the municipality cannot establish any of the statutory defences, it will be found liable. However, the municipality can still demonstrate that the plaintiff caused or contributed to his/her injuries.
[79] In considering these steps, it is important to remember that the municipality is not to be treated as an insurer of those who use the sidewalks, and that proof of a state of non-repair is not in itself enough: Ondrade v. Toronto (City), [2006] O.J. No. 1769 at para. 65.
[80] As to the first element, that is proof of non-repair, it is important that s.44 imposes a duty on the municipality to maintain sidewalks in a state of repair “that is reasonable in all of the circumstances”. Merely because a pedestrian falls does not equate to evidence that the sidewalk was in a state of non-repair as a municipality cannot be expected, nor is it required, to maintain perfectly even sidewalk surfaces: Blaquiere v. Burlington (City), [1999] O.J. No. 2558 at para. 8, affirmed [2000] O.J. No. 4934 (Div. Ct.).
[81] It is a question of fact in each case whether a condition of non-repair exists in respect of the sidewalk location in issue: Anderson v. Hamilton (City), supra at para. 26; Slater v. Toronto (City), [2004] O.J. No. 4919 at para. 40. All of the circumstances must be considered: Lombard v Whitby (Town), 2007 21603 at para. 29; Bourgoin v. Leamington, 2006 11904 at para. 32.
[82] It appears that a judicial “rule of thumb” has developed whereby height variations between sidewalk sections of ¾ of an inch or more are often considered to be in a state of non-repair: Blaquiere v. Burlington (City), supra at para. 16; Epifano v.Corporation of the City of Hamilton, [2005] O. J. No. 1463 at para. 9; Slater v. Toronto (City), [2004] O.J. No. 4919 at para. 39-40; Anderson v. Hamilton (City), supra at paras. 30 and 42-44.
[83] It has been held that in considering whether a particular location falls below a “reasonable state of repair” the court should consider the location in terms of whether it is a heavy or light pedestrian location, and the accident history; Stojadinov v. Hamilton (City), [1988] O.J. No. 2038 at p. 6; MacKay v. Thunder Bay (City), [2000] O.J. No. 2853 at para. 2. In this case there is little direct evidence of the extent of pedestrian usage. The evidence does show that there is a school, a park, several bus stops and businesses down the street. The evidence also indicates that this street, Upper Sherman, is a busy thoroughfare for vehicular traffic. The residential development, as seen in the photographs, appears fairly dense. In all these circumstances, I think it fair to assess the pedestrian traffic in this area as at least average for a busy city street.
[84] I agree with the observation in Guy v. The City of Toronto, [2008] O.J. No. 523269 at para. 111 that the fact that there were no public complaints about a state of disrepair is of little consequence.
[85] I find that the height discrepancy between the two slabs, that of 15/16”, constituted a state of repair that was not reasonable at that location and accordingly constituted a hazard and a condition of non-repair at that location.
[86] On the causation issue, while the onus is on the plaintiff, the test is not to be applied “too rigidly” and need not be proven with scientific precision. Essentially it is a practical question to be answered by common sense: Cartner v. Burlington (City), 2008 CarswellOnt. 8238 at paras. 18-22.
[87] As to this second requirement, that of causation, while Mrs. Worthey admits to paying no particular attention to the sidewalk as she traversed it, I am quite satisfied having observed and listened to her evidence that she is in no way a careless or reckless person. She presented as a thoroughly responsible and intelligent lady, and one whose lifestyle is to act sensibly.
[88] I accept without reservation that the fall of the plaintiff was caused as a result of her foot hitting the raised edge of the higher sidewalk slab as she walked in a southerly direction on Upper Sherman at this location.
[89] In terms of statutory defences, a Municipality is nevertheless not liable if it is determined to have “taken reasonable steps to prevent the default from arising”: s.44 (3) (b). The steps to be taken need only be reasonable in terms of both inspection practises and repair practises: Blaquiere v. Burlington (City), supra at paras. 8 and18.
[90] The evidence in this case informs me that this City deemed it appropriate to adopt a policy requiring that the City sidewalks be inspected annually. This sidewalk was not inspected at all in 2012, the year of the fall. In addition, while an after the fact observation, the evidence before me indicates that the City has still not repaired the sidewalk defect in question here, standing pat apparently on its measurements that indicate the height discrepancy here is 1/8” less than what has been judicially recognized as a commonly accepted threshold for action ability.
[91] Here the municipality failed to perform the inspection steps deemed by itself to be reasonable for a City of this size and in that part of Ontario. The failure of a municipality to follow its own inspection policy, can on its own lead to a finding that the municipality is legally accountable: Cerelli v. City of Ottawa, 2008 ONCA 28 at para. 2-3.
[92] In Epifano v. Corporation of the City of Hamilton, supra, it was held at para. 9 that failure to provide the necessary training and tools to sidewalk inspectors undermines a reasonable inspection policy. Where, as here, the municipality contracts out the responsibility for sidewalk repair inspection, it seems to me the City has to either lead evidence from the third party, or from its own employees, to satisfy the court not only that the frequency of inspections was reasonable, but that the training and qualifications of, and the efforts taken by, those doing the inspections were reasonable.
[93] In my opinion the evidence shows that the defendant failed to take the reasonable steps that would protect it under s.44 (3).
[94] In terms of contributory negligence, in my opinion, the plaintiff must share some of the fault in the circumstances of this case. She admitted, candidly, in her evidence that she was not paying particular attention to the sidewalk as she walked at the time of the fall. If a sidewalk is maintained in a reasonable state of repair, surely a pedestrian is not required to devote all their attention to avoiding sidewalk defects – nor would they be required to in the case of a sidewalk under reasonable repair. When the sidewalk is not in that condition, and instead is in the condition that one can see from the photographs in this case, a pedestrian paying reasonable attention ought to be able to see an upcoming defect that requires that some care be exercised as one steps over the problem, or walks around it.
[95] In all the circumstances of this case, in my assessment, it is fair to hold the plaintiff contributorily negligent to the extent of 30%.
[96] As I have no evidence in support of the claims of the other plaintiffs, those claims will be dismissed, unless they have been otherwise agreed upon as part of the settlement as to damages.
[97] If the parties cannot agree on costs written submissions may be forwarded to my chambers at the Court House, 7th Floor, 85 Frederick Street, Kitchener, Ontario N2H 0A7. Submission should not exceed 5 pages exclusive of offers to settle, bills of costs, and relevant authorities. Those of the plaintiff are to be received within 21 days of the release of these reasons, and those of the defendant within 14 days thereafter. If no submissions are received within those times, or such extensions as may be sought and granted, costs will be deemed to have settled.
C. Stephen Glithero
Released: June 8, 2015
COURT FILE NO.: 13-40483
DATE: 2015-06-08
ONTARIO
SUPERIOR COURT OF JUSTICE
Blanche Worthey, Justin Worthey,
Lana D’Arstrella, and Dougles Worthey
Plaintiffs
– and –
City of Hamilton
Defendant
REASONS FOR JUDGMENT
C. Stephen Glithero J.
Released: June 8, 2015