Campbell v. Bruce (County), 2016 ONCA 371

Released May 17, 2016 | Full Decision [CanLII]

The Court of Appeal upheld the trial decision of Justice M.A Garson. The County of Bruce (Bruce) as occupier, was liable for the Plaintiff’s injuries for failing to take reasonable care. No damages were dealt with at trial.

Bruce constructed a public park for people to ride on various trials with mountain bikes. Within the park, Bruce also constructed a series of 10 wooden obstacles (“features”) where riders could test their skills. This included two wooden teeter-totter structures called “Pee-Wee” and “Free-Fall” which could be ridden consecutively. The Plaintiff, Stephen Campbell manoeuvered across Pee-Wee but fell from his bicycle while attempting to cross Free-Fall, fracturing his C6 vertebrae. He was rendered quadriplegic. The Plaintiff was wearing a helmet and was an experience rider.

The Trial Judge (TJ) found, and the Court of Appeal (CA) agreed, that Bruce breached the duty owed to the Plaintiff under s. 3 of the Occupiers Liability Act by:

  1. Its failure to post proper waring signs;
  2. Its negligent promotion of the Park;
  3. Its failure to adequately monitor risks and injuries at the Park; and
  4. Its failure to provide an “adequate progression of qualifiers”.

The TJ found these four breaches of the duty were an independent cause of the Plaintiff’s injuries. The TJ found that the Plaintiff was not contributorily negligent in deciding to ride on Free-Fall or in the manner in which he attempted to extricate himself from the situation once he started to fall.

Five issues were raised on appeal and the CA agreed with all the TJ’s conclusions:

 

1) The TJ did not impose an incorrect and overly onerous duty of care.

Bruce ought to have ensured that those who failed the test run of Free-Fall could do so safely or without injury.

 

2) The TJ correctly addressed the question of inherent risk.

The TJ noted that there were dual risks with the Free-Fall but was troubled by the way novice riders or riders with trail experience but not “features experience” could self-assess. Riders may not be aware of the skills required to successfully manoeuver the features.

 

3) The TJ applied the correct standard of care.

The TJ clearly identified the problems posed by Free-Fall including:

  1. Riding too slow and losing momentum;
  2. Riding too fast and being launched off the end of the structure; and
  3. Failing to appreciate that, in the case of a fall on Free-Fall, the rider must, contrary to one’s natural instincts, immediately release one’s grip on the bike and jump clear of the falling bike.

The TJ also found four breaches of the standard of care of an occupier:

  1. Failure to post proper warning signs;
  2. Negligent promotion of the park in a brochure;
  3. Failure to adequately monitor risks and injuries in the Park; and
  4. Failure to provide an adequate progression of qualifiers in the trials area. After review of the photos of the features, the TJ concluded they were built in such as way that Free-Fall was the next logical progression after Pee-Wee. Coming off Pee-Wee delivered the rider to the start of Free-Fall.

The CA was persuaded by the fact that several riders had been previously injured, (including serious injuries), on the wooden obstacles. There was no formal manual booklet or policy regarding use or maintenance of the features. The incident analysis and reporting system was inadequate. There was no mechanism to collect and assess ambulance calls at the park until after this incident.

 

4) The TJ properly analyzed four points of causation.

Signage: Had more detailed signage been in place, the decision made by the Plaintiff would have been different and the injuries would not have occurred. This would include a sign instructing on how to reduce or minimize injuries when falling which would have allowed the Plaintiff to abandon the feature in a different manner. A more detailed warning sign would have impacted him and his decision to attempt Free-Fall.

Brochure: The CA agreed with the TJ’s findings that the Plaintiff’s decision to attend the park was influenced by the promotion of the park as a family venue and his injuries would not have occurred if the park was accurately promoted.

Accident Reporting: The TJ was also entitled to find that had the municipality adequately monitored previous accidents and been aware of the number of accidents at the Park and on Free-Fall, actions would have been taken that would have prevented the Plaintiff’s injuries.

Tandem Obstacles: The final point of causation was that moving Free-Fall further away from Pee-Wee, so the obstacles would not be tried in tandem, would have prevented the Plaintiff from attempting it.

 

5) There was no contributory negligence on the part of the Plaintiff.

The Plaintiff could not be criticized or found liable for failing to be more capable in his attempt to extricate himself from the emergency situation he faced as a result of the actions of Bruce.

By concluding that the County breached its duty under s. 3(1) of the OLA, and that the risks of Free-Fall were a hazard and not readily apparent, the Plaintiff lacked the foresight of the severe consequences of his behaviour. The Plaintiff did not have the skill to successfully navigate Free-Fall. There was no error in the TJ’s appreciation of the evidence or his conclusions on the issue of contributory negligence.

A liability split was rejected. The appeal was dismissed.

Read the full decision on CanLII
Sue Noorloos
Written by

Sue joined Legate and Associates in 2011 after working in a general litigation practice. Sue works closely with the firm’s accident benefit department and her client’s rehabilitation teams to ensure that insurance benefits are provided when required and disputes are addressed promptly.

Sue has a love for music and is the choir director at Knox-St. Andrews Church. She is involved with Courthouse Rocks – a fundraiser for London Lawyers Feed the Hungry. She was the former secretary of the Middlesex Law Association. Her community volunteer activities have included performing/accompanying at community events, sitting on school council, coaching soccer, and judging moots at Western University and local high schools. She resides on a working farm and is involved with the local agricultural community. In addition to the practice of law, Sue is a “green thumb”, a sought after local performer and a busy Dance Mom.