On November 8, 2003, the 26 year old plaintiff fell at an intersection in a high pedestrian traffic area, where a construction project was taking place. She was on her way home from the  grocery store, walking along her usual route, carrying a modest amount of groceries. She alleged  that she crossed the road and tripped while stepping onto the sidewalk. The plaintiff had mild  cerebral palsy which affected the left side of her body. She injured her right shoulder in the  fall.

The intersection had been under construction since May 2003. The municipality had hired a general contractor to complete the road rehabilitation  and construction. The general contractor in turn had hired a sub-contractor to pave the road. By  the time of the accident, most of the reconstruction had taken place. However, the location of the plaintiff’s fall had not been completed, and she encountered a height  differential of approximately 1.5 inches. Upon completion of the construction project, the height  differential in the location of her fall was to be negligible. The plaintiff testified, and the  Court accepted, that the warning signs regarding the ongoing construction had been removed, and   she was unaware that construction was still underway.

The Court found all three defendants (the municipality, the general contractor and the  subcontractor) liable. The Court noted that one of the purposes of ramping at intersections was to ensure that those with disabilities or accessibility needs were able to negotiate crossing  streets safely. The Court held that it was foreseeable that, without temporary ramping in place and without some warning that the sidewalk was incomplete, a height differential of 1.5  inches was a tripping hazard, given that under normal circumstances there would have been almost no  height differential. The Defendants knew or ought to have known about the state of non-repair and failed to take the  appropriate steps to rectify that condition.

Although citing the Municipal Act, the Court also cited and seemed to rely on the provisions in the  Occupiers’ Liability Act in finding the municipality liable, noting that an occupier cannot avoid its responsibilities by not paying attention to the practices of a co-occupier. It is not clear  whether the Court was referred to section 10(2) of the Occupiers’ Liability Act, which specifically states that the Occupiers’ Liability Act does not apply to a municipality where it is the occupier  of a public road. In addition, it appears that the municipality’s defence may have been assumed by  the contractor, and the extent to which a separate defence was advanced on behalf of the  municipality is unclear.

In any event, the Court found that the facts in this case demonstrated that all three defendants  continued to be occupiers of the intersection by virtue of their obligations to the public and the fact that they each bore some responsibility  for ensuring site safety. The municipality had  an inspector attending regularly to monitor the progress of work, and the contractor also monitored the work of its subcontractor. The primary  responsibility, however, rested with the sub-contractor as it had control over the site. Accordingly, the Court held that the sub- contractor was 50% liable, and the municipality and  contractor were each 25% liable for the plaintiff’s damages.

Despite the fact that the plaintiff had safely navigated the intersection before and was capable of  negotiating modest changes in elevation when walking, the Court found no contributory negligence.

Although not specifically addressed in this decision, this case is a reminder of the importance of  appropriate indemnification and hold harmless language in favour of municipalities in contracts relating to construction projects.

Andrew McLean