Recently, the Supreme Court of Canada dismissed a teenager’s leave to appeal an Ontario Court of Appeal decision relating to her case against a town in Ontario for damages she suffered after being electrocuted during a soccer game.
Teenager Electrocuted During Soccer Game
In the summer of 2012, an eighteen-year-old arrived at a sports centre in the Town of Whitby, Ontario, to play in a local soccer game.
Halfway through the game, the teenager left the soccer field and sat down on the grass behind the bench, in proximity to a light pole. When the whistle blew to restart the game, she rolled over onto her hands and knees to get up and felt a shock.
She had been electrocuted.
Although she returned to the field right after the electrocution, she later collapsed and was treated in hospital.
Teenager Sues Over Electrocution alleging the Town failed to Comply with the Occupiers Liability Act
The teenager, along with her parents, sued the Town of Whitby for damages arising from her electrocution.
They alleged the teenager had sustained serious and permanent injuries as a result of the electric shock she received that night.
The teenager claimed pecuniary and nonpecuniary damages against the Town of Whitby, alleging that the Town had not taken reasonable steps to inspect and maintain the lights on the field, and that the Town had failed to comply with the provisions of the Occupiers Liability Act.
In addition, the teenager’s parents claimed damages for loss of care, guidance and companionship pursuant to the Family Law Act.
Court determines the Injury was Not Foreseeable and Standard of Care was Met
The trial judge found that, while the possibility of the lightning strike was foreseeable, the teenager’s injury was not.
Additionally, the trial judge found that the Town of Whitby had met its standard of care because it had annual inspections conducted by the Electrical Safety Authority (ESA) and had received advice on compliance with the Electrical Safety Code.
Ultimately, the trial judge rejected all of the teenager’s arguments, finding that the stray voltage leakage that caused the injury in her case was extremely unusual, that there had been no cost-effective or reliable way to have detected the stray voltage, and that, due to the timing of the lightning strike, no practices proposed could have prevented the teenager’s electrocution, including her suggested use of pen testers. In addition, he rejected the arguments that the Town was not in compliance with its security obligations and found that, even if it had not been in compliance, such compliance would not have prevented the teenager’s electrocution.
The teenager and her parents appealed to the Ontario Court of Appeal.
Duty of Care does not Require a Standard of Perfection under the Occupiers Liability Act
The court began by setting out the exact duty owed by the Town of Whitby under the Occupiers Liability Act.
Specifically, it stated that, under the Occupiers Liability Act, the Town of Whitby had an affirmative duty to all occupiers of the premises to:
“[T]ake 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”.
However, the court clarified that the duty does not require a standard of perfection. Therefore, what constitutes reasonable care will depend on the facts of each case.
Court of Appeal confirms Trial Judge Correctly Applied the Standard of Care Analysis
The court addressed the teenager’s numerous grounds of appeal, several of which centred on the Town’s failure to use “pen tests”, which are designed to detect live current. The teenager argued that the pen tests could have detected the current and prevented her injuries.
The trial judge had accepted expert evidence presented by the Town of Whitby in which its expert opined that the pen tests would not have been an effective way of detecting stray current from lighting poles. The expert rejected the contention that pen testing would have been effective or practical for use on a soccer pitch where the energized wires ran underground and inside poles because, in his opinion, pen tests cannot differentiate between whether the electric field is from the normal wires powering the lights, or from electric current leaking from those wires.
In response to the teenager’s argument, the court found that the trial judge had properly used his discretion in admitting the expert’s evidence on the issue of pen tests and would not interfere with his findings.
Additionally, the court refused to consider the teenager’s argument that the trial judge had erred in his analysis of the foreseeability of the specific nature of the damage. It ruled that it was unnecessary to address the trial judge’s foreseeability analysis because it was of the view that he had correctly conducted and applied the standard of care analysis.
In the result, the Court of Appeal dismissed the teenager’s appeal.
Leave to Appeal Denied by the Supreme Court of Canada
As noted above, the teenager subsequently sought leave to appeal with the Supreme Court of Canada, but it dismissed her request.
Contact Campbell Litigation for Experienced Advice on Premises Liability and other Personal Injury Matters
Accidents resulting from the negligence of owners or occupiers can be devastating. Depending on the severity, these incidents can cause serious injuries and have a lasting effect on physical and mental health, mobility, ability to earn income. It is important to obtain trusted legal advice as soon as possible after an accident to preserve evidence and focus on recovery. Insurance companies have lawyers, adjusters and claims representatives who can work against you to deny your claims. Effective legal representation levels the playing field.
At Campbell Litigation in Waterloo, our team has extensive experience helping innocent victims of premises liability accidents obtain maximum compensation and benefits for their injuries. Seasoned personal injury lawyer and litigator Richard Campbell is a skillful advocate who works tirelessly to ensure his clients are fairly compensated through settlement or judgment at trial. To speak with a member of our firm, call us at 519-886-1204 or contact us online