The Municipal Corporation of the County of Bruce constructed a public park in 2005, for people to ride their mountain bikes on various trails and obstacles. Three years after the park first opened, Stephen Campbell, a 43-year old man who was very experienced in mountain bike trail riding, fell while attempting to cross a constructed obstacle called ‘Free Fall’. As a result of his fall, Mr. Campbell fractured his vertebrae and tragically, became quadriplegic. The accident occurred the second day Mr. Campbell visited the park, along with his wife and two children, and after he had already ridden on several trails in the facility.
In a 2015 trial, the judge found the municipality liable for Mr. Campbell’s injuries and ruled that, under s.3 of the Occupiers’ Liability Act, the municipality breached its duty of care to the plaintiff in five ways:
- Failure to post proper warning signs
- Negligent promotion of the park
- Failure to adequately monitor risks and injuries at the Park
- Failure to provide adequate progression of qualifiers
- Failure to make the trails section a low-risk training area
The trial judge noted that the first four breaches were all independently responsible for the plaintiff’s injuries. The plaintiff was found not contributorily negligent in his decision to ride on Free Fall or in the manner in which he tried to prevent himself from falling and becoming injured once he began to fall.
In Campbell v. Bruce (2016), the County appealed the trial judge’s decision on all issues, including causation, duty and standard of care, and contributory negligence. The Ontario Court of Appeal was required to decide on the following key questions.
- Did the trial judge impose an incorrect and overly difficult duty of care?
- Did the trial judge err in assessing the question of inherent risk?
- Did the trial judge err in his analysis of the standard of care?
- Did the trial judge err in his analysis of causation?
- Did the trial judge err in his assessment of contributory negligence?
On the issue of the municipality’s duty of care to the plaintiff, the court rejected the appellant’s argument that the trial judge’s description of its duty more closely rendered it an ‘insurer’ and improperly focused on the type of injury sustained by the plaintiff. Justice MacPherson disagreed with this understanding and explained that the trial judge’s use of the word ‘ensure’ refers to the fact that the municipality has a duty to ‘take appropriate care’ with respect to its design and management of the Park activities.
Justice MacPherson referenced Lord Denning’s judgment in Pannett v. McGuinness (1972), in which he stated, “…you have to take into account all the circumstances of the case and see then whether the occupier ought to have done more than he did. You must apply your common sense. You must take into account the gravity and likelihood of the probable injury. Ultra-hazardous activities require a man to be ultra-cautious in carrying them out. The more dangerous the activity, the more he should take steps to see that no one is injured by it”. Justice MacPherson found that the trial judge’s reasoning regarding the municipality’s duty of care was consistent with the passage and as such, the trial judge did not impose an incorrect and difficult duty of care on the municipality.
On the matter of inherent risk, the appellant argued that although the trial judge correctly recognized the principle of inherent risk in trail biking and the fact that the respondent was aware of the risk, the judge erred by applying the respondent’s inability to foresee the extent of potential damage he could suffer specifically in riding the Free Fall trail. Justice MacPherson disagreed with this argument and agreed with the trial judge’s reasoning that there were genuine risks at Free Fall that were not effectively communicated and also, a participant is not able to self-assess their ability on the trail when they are unaware of the skills required to successfully manoeuvre it. The court referred to the testimony of the municipality’s Director of Planning and Economic Development, who was an experienced trail biker and the principal designer of the facility and revealed that he fell many times when attempting Free Fall. Justice MacPherson agreed with the trial judge’s conclusion that the County breached its duty to properly warn Mr. Campbell of the dangers of Free Fall, that an ordinary person could not perceive or comprehend.
Regarding the issue of standard of care, the appellant argued that the trial judge did not clearly articulate to which standard the County was being held. Also, the trial judge referred to the trail as a hidden or unexpected danger but did not explain the nature of the hazard or what the County could have done to avoid the liability. Justice MacPherson again disagreed with the appellant and noted that the trial judge did, in fact, identify the specific nature of the hazards posed by the trail. These included: riding too slow and losing momentum; riding too fast and being launched off the end of the structure; and in the case of a fall, a rider would have to go against their instincts and release their grip and jump off the falling bike.
On the question of what the County could have done to avoid the liability, Justice MacPherson noted the trial judge’s clear criticism of several specific actions the County could have taken to avoid breaching its duty of care, such as posting appropriate warning signs that communicate the risk of serious injury and the level of expertise required for riding various features and trails. Also, the trial judge asserted that the Park brochures should have included similar warnings about the skill levels required and risk of injury.
In a negligence action, the ‘but for’ test is the requisite test for causation. What this means is that a plaintiff must show, on a balance of probabilities, that ‘but for’ the defendant’s negligent action, the injury would not have happened, as noted in Clements v. Clements (2012) and Ediger v. Johnston (2013).
The appellant argued that the trial judge assessed causation on a standard of reasonableness, rather than the “but-for” test, and he also failed to make factual findings of causation. Justice MacPherson disagreed, ruling that on all four causation points, the trial judge did, in fact, clearly apply the “but-for” test. For example, in his assessment of the impact of inadequate signage, the trial judge stated that “a sign instructing how to reduce or minimize injuries when falling would have allowed [the plaintiff] to abandon the feature in a different manner” and he further stated “I am satisfied that a more detailed warning sign would have impacted him and his decision to attempt Free Fall”.
Wawanesa also challenged the trial judge’s ruling that the plaintiff is not contributorily negligent for his injuries, on three bases. First, it was argued that the trial judge took too narrow an approach by focusing his inquiry exclusively on Mr. Campbell’s actions in attempting to exit the trail, since a person’s duty to take reasonable care for their safety is not only applicable in perilous situations, but also extends to the decision to attempt the Free Fall obstacle. Secondly, the appellant submitted that the trial judge’s conclusion was inconsistent an admission made by plaintiff’s, when pressed during closing submissions, that at the plaintiff should, at best, obtain a 80/20 liability split. Finally, the appellant argued that the trial judge’s conclusion was in variance with an observation he made early in his judgement stating, “Stephen Campbell overestimated his ability and underestimated his skill required to successfully ride this teeter-totter feature known as Free Fall.”
Justice MacPherson did not accept the appellant’s first argument, since the trial judge had earlier acknowledged that the County breached its duty because the risks of the trail were not readily apparent and thus, the plaintiff would have lacked the foresight of the severe consequences he later suffered. Having made this finding, it was reasonable that the trial judge then focused on Mr. Campbell’s thinking and actions while he was falling. On the remaining two of the appellant’s arguments, Justice MacPherson acknowledged that both interpretations were possible, but concluded that plaintiff’s counsel’s discussion with the trial judge did not amount to a formal admission of liability. Further, the trial judge’s statement (above) was simply an observation that, as it turned out, the plaintiff did not have the requisite skill to navigate Free Fall. On all these considerations, Justice MacPherson concluded that the trial judge made no overriding errors leading him to conclude the plaintiff was not contributorily negligent.
Justice MacPherson dismissed the appeal and awarded costs to the plaintiff.
A municipality, like any property owner/occupier, owes a duty of care to keep anyone coming onto the property reasonably safe from harm, and when a failure to exercise reasonable care results in personal injury, a property owner/occupier may be held liable. At Rastin & Associates, we have successfully represented many individuals who were injured as a result of property owner and municipal negligence. If you were injured and would like to claim compensation for your losses, call Rastin today to discuss the facts of your case and find out about your legal rights in the matter.