In a recent case, Hamilton-Dawkins v. Town of Ajax, the Ontario Superior Court of Justice dismissed a personal injury action against the Town of Ajax. The Court found that the Town of Ajax was not liable for the injuries sustained by the plaintiff in a trip-and-fall due to an available statutory defense under the Municipal Act.
This blog will summarize this case and provide some key takeaways for personal injury plaintiffs.
Plaintiff Trips on Municipal Sidewalk
On May 9, 2011, the plaintiff was walking on the sidewalk in a residential area in the Town of Ajax. The plaintiff tripped on a “surface discontinuity” on the sidewalk (in other words, a crack) and fell.
The plaintiff returned to the scene of the fall the following day, noting neon paint near the area where she fell. Shortly thereafter, the plaintiff called the Town of Ajax to report the slip and fall. One week later, the plaintiff returned to the scene of the fall to take photographs and saw that the sidewalk had been replaced with a new concrete sidewalk.
Plaintiff Brings Personal Injury Action Against Town
The plaintiff later brought an action against the Town of Ajax for the injuries suffered from the fall, citing s. 44(1) of the Municipal Act. This section states that municipalities with jurisdiction over a highway or bridge must keep it in a reasonable state of repair.
The Town of Ajax presented evidence regarding its process for inspecting municipal sidewalks. According to witnesses, the Town of Ajax inspected sidewalks, at a minimum, once per year between May and August. These inspections were carried out by summer students who were instructed to mark any surface discontinuities over 19mm with orange paint. Marked areas would then be repaired. The last documented sidewalk inspection had occurred on May 27, 2010, which was nearly one year before the accident occurred.
Parties Agree That Surface Discontinuity Caused the Plaintiff’s Injuries
The Court went on to consider the following four-part test established in Fordham v. Dutton-Dunwich (Municipality), which is typically referenced when a party brings a statutory cause of action against a municipality:
- The plaintiff must prove, on a balance of probabilities, that the municipality did not keep the road in a reasonable state of repair; and
- The plaintiff must prove that the municipality’s failure to keep the road in a reasonable state of repair caused the accident.
If the plaintiff establishes the elements above, they have a prima facie liability case against the municipality, and must further prove that:
- The municipality has the onus of establishing that a statutory defence applies; and
- If the municipality is found liable for the accident, they may show that the plaintiff’s actions caused or contributed to their injuries.
The Town of Ajax did not deny that the plaintiff’s injuries were caused by the surface discontinuity. However, it argued that it was protected from liability under s. 44(3) of the Municipal Act. This section states that municipalities are not liable for failing to keep a highway or bridge in a reasonable state of repair if they:
- did not know (and could not reasonably have been expected to know) about the state of repair (s. 44(3)(a)),
- took reasonable steps to prevent the issue from arising (s. 44(3)(b)), or
- met the minimum standards under the Regulations (s. 44(3)(c)).
To successfully defend themselves, a municipality only needs to meet one of the defences under s. 44(3) of the Municipal Act, 2001.
Town Provides Statutory Defense Against Liability
The Court began by considering the “reasonable knowledge” defense, in other words, that the municipality did not know (and could not reasonably have been expected to know) about the state of repair. The Town of Ajax argued that there was no evidence of direct knowledge of the surface discontinuity, nor was there evidence suggesting that the Town of Ajax could have known about it. The Court clarified that the “reasonable knowledge” defense is a specific test. The Town of Ajax, insofar as the claim was concerned, was not expected to have general knowledge of the condition of all its sidewalks, but rather the analysis focused on the specific area of sidewalk at issue.
The Court, with some discomfort, found no evidentiary basis to find that the Town of Ajax knew or could have reasonably been expected to know about the state of the sidewalk at the time of the plaintiff’s accident. Specifically, it was noted that there was no evidence suggesting that concerns regarding the sidewalk’s condition had been brought to the Town of Ajax between the date of the last inspection and the accident. There was evidence to establish that a summer student had been assigned to inspect the sidewalk and had, in fact, conducted the inspection. Had there been evidence that the summer student had conducted the inspection negligently or had made an alternate finding, the Court noted that it may have affected the outcome.
Plaintiff’s Claim Dismissed by Court
The Court reiterated that it had concerns about the Town of Ajax’s lack of written policy and training, along with the failure to record the name of the student that performed the inspection and record the surface discontinuity before the repairs were completed. Nevertheless, it found no evidence to suggest that the Town of Ajax knew or could reasonably have been expected to know about the state of the sidewalk at the time of the accident.
As a result, the court dismissed the plaintiff’s claim for damages.
Key Takeaways for Personal Injury Claimants
In any personal injury claim, a plaintiff will not only need to prove their claim (for example, proving that they have suffered injuries and that those injuries were caused by the negligence of another party) but they will also need to consider the applicability of potential defenses. Liability claims against municipalities, in particular, can be challenging to navigate due to the existence of statutory defenses such as those outlined under s. 44(3) of the Municipal Act.
Moreover, actions against municipalities must be addressed quickly. Under s. 10 of the Municipal Act, personal injury claimants must provide written notice of their claim to a municipality within 10 days of their injury. This notice must be provided in order to be able to bring an action against the municipality. Thus, it is essential to speak with an experienced personal injury lawyer as soon as possible to preserve your right to bring a claim.
Contact the Experienced Personal Injury Lawyers at Campbell Litigation Serving Kitchener-Waterloo
Trip and fall accidents can happen anywhere, year-round. While slipping on ice and snow is a common cause of trip and fall accidents, slips and trips can occur anywhere – even a residential sidewalk. The experienced personal injury law team, led by Richard Campbell, at Campbell Litigation can assess your circumstances and determine whether you have a claim. We understand that no two accidents or accident victims are the same, which is why we provide every claimant with the specialized attention needed to bring about the best possible resolution. To speak with a member of our team regarding your personal injury matter, contact us online or by phone at 519.886.1204.
