Occupier’s liability indicates that a duty of care owed by those who occupy or control premises to individuals entering the premises. Whether it is a public space, private property, or a commercial establishment, the occupier must take reasonable steps to ensure the safety of all visitors. Occupier’s liability plays a pivotal role in personal injury cases where accidents occur on someone else’s property and lead to serious injuries or damages.

However, in tort cases, an injured plaintiff may be found to have been contributorily negligent and an award for damages may be adjusted accordingly. A court will consider the actions of both the injured party and the defendant when determining liability. This shared responsibility approach reflects the legal principle that individuals should exercise reasonable care for their own safety and well-being.

This light will shed light on the delicate balance between occupiers and visitors, and the shared accountability that underpins certain personal injury claims, in light of a recent decision from the Court of Appeal.

Concertgoer sustains serious knee injury after falling down a hill

In Lyng v. Ontario Place Corporation, the 21-year-old respondent/plaintiff (“PL”) attended a concert at Ontario Place on July 14, 2016 which was a rainy day. After the concert concluded, PL and his friend, along with other concertgoers, exited the main gates and proceeded towards a pedestrian bridge that provided a quick and direct route to the Exhibition GO station. Upon arrival at the bridge, PL discovered it was closed and two security guards blocked the entry.

PL and his friend instead proceeded down a hill near the bridge which was not accompanied by any closure or warning signs. While PL’s friend “skidded down” the hill without falling, PL fell on his way down and sustained a serious knee injury which required surgery. PL had consumed alcohol prior to the incident and was wearing flip-flops at the time.

Trial judge reduced damages award by 25 per cent due to plaintiff’s contributory negligence

At trial, the judge found that the defendant, Ontario Place, was liable, under section 3 of the Occupiers’ Liability Act, for PL’s injuries. Importantly, the trial judge noted that:

• Ontario Place had blocked the pedestrian bridge that PL attempted to access;
• The rain had made the grass on the hill wet and the hill was, therefore, a hazard;
• Ontario Place was aware of this hazard;
• Ontario Place could have warned people of the risk of such hazard, but did not;
• PL did not injury himself on the hill, but rather jumped and tore his ACL when his left leg landed on the road at the bottom of the hill.

The trial judge rejected Ontario Place’s argument that it should be absolved of liability under section 4 of the Occupiers’ Liability Act, arguing that PL had “willingly assumed the risk of going down the hill.” Accordingly, the trial judge found that PL was contributorily negligent in his injuries, apportioning 25 per cent liability to PL with Ontario Place being 75 per cent liable. As a result, PL was awarded $50,000 in non-pecuniary damages, $100,000 for loss of competitive advantage on the basis that he might require further surgery, and $25,367.21 for lost income.

Appellant’s arguments rejected on appeal

Ontario Place appealed the decision on various grounds, including, among other things:

• The trial judge’s consideration of a liability theory not raised in the pleadings;
• The trial judge’s causation analysis; and
• Awarding damages for loss of competitive advantage.

The Court of Appeal, however, rejected all of Ontario Place’s arguments. The Court noted that the theory of liabilty raised was not raised “for the first time” in the reasons for judgment, but was actually raised in the pleadings and addressed in “both the written and oral arguments made by counsel at trial.”

Further, the Court dismissed the argument that Ontario Place’s failure to provide an alternate exit route was not the “but for” cause of PL’s injuries, as they resulted from his jump at the bottom of the hill. The Court acknowledged that it was up to the trial judge to find that closing the pedestrian bridge and not providing an alternative exit commenced the chain of events which resulted in PL’s injuries.

Court of Appeal upholds trial judge’s decision

Finally, the Court noted that an appellate court will only interfere with a damages award if there is generally an error of law or principle, or a palpably incorrect or wholly erroneous assessment of damages, which, in this case, there was not. Although the expert evidence provided by PL’s orthopaedic surgeon was “superficially inconsistent,” awarding a loss of competitive advantage was available based on the analysis of the evidence presented to the trial judge. Accordingly, the Court of Appeal wholly upheld the trial judge’s decision.

This decision serves as a reminder that even if a plaintiff sustains injuries resulting from their own unwise decisions, an occupier may not be completely absolved of their liability in relation to resulting injuries.

Contact the Injury Lawyers at Campbell Litigation for Representation in Occupier’s Liability Cases

At Campbell Litigation, our experienced personal injury team, led by Richard Campbell, frequently advise and represent clients in various types of personal injury claims, including slip and falls, occupier’s liability claims, and car accident. Our firm will help you manage your personal injury claim from start to finish and will advocate on your behalf to ensure you receive the maximum compensation you are entitled to. To discuss your circumstances with a member of our team and determine whether you may have a claim, contact us by phone at 519-886-1204 or reach out to us online.