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.