Judge Applies “But For” in Slip and Fall Case

In Cartner v. Burlington (City), a recent slip and fall action, Mr. Justice Michael Quigley found for the plaintiffs. In doing so, he applied the “but for” test of causation that was endorsed by the Supreme COurt of Canada in Resurfice v. Hanke.

The case involved a slip and fall accident in Burlington, Ontario in which the plaintiff, a 52 year-old woman, broke her leg and was unable to return to work. She slipped on a “muddy concrete slurry substance” that had pooled on the city sidewalk. She claimed that the substance had originated with “Crystal Shoes”, a nearby store, and sued the owners, who were husband and wife. She also sued the City of Burlington as it had been responsible for the maintenance of the sidewalk. Justice Quiqley found both defendants to be liable for the damages and apportioned 80% of the liability to Crystal Shoes and 20% to the City of Burlington.

Justice Quigley relied on the decision in Resurfice Corp v. Hanke, 2007 SCC 7 (CanLII), [2007] 1 S.C.R. 333, when dealing with the issue of causation. In that decision, the Supreme Court of Canada reaffirmed that the “basic test” for determining causation is the “but for” test and that this test applies to multi-cause injuries. It is only in special circumstances, in other words, where it is impossible to apply the “but for” test because of factors out of the plaintiff’s control, that a “material contribution” test can be applied. Justice Quigley said this was not the case here but he went on to say that even using the material contribution test he would have reached the same conclusion.

With respect to liability, the husband who co-owned Crystal Shoes testified at trial and was found not to be credible and it was stated that much of his evidence had “no air of reality”. Justice Quigley found his evidence to be “largely contrived, internally contradictory, and “cooked up””. On other evidence, including testimony and photographs, it was concluded that the obvious and evident source of the concrete slurry substance was the owner of Crystal Shoes who used a hose to wash concrete residue off of his property and onto the City’s sidewalk the day before the accident. Justice Quigley found the owner of Crystal Shoes liable in both negligence and nuisance. The co-owner of Crystal Shoes, the wife, who did not testify and was not involved in the proceedings despite being a defendant, was found to be severally and jointly liable.

As for the liability of the City, it took the position that it did not know and could not have known about the concrete slurry, a fact which was admitted by the plaintiff. Given this fact, the City’s liability had to be based on the physical state of the sidewalk itself. Justice Quigley stated that while the City is not an insurer of pedestrians and it is not required to maintain its sidewalks in a perfect condition, it did have obligations under section 284(1) of the Municipal Act. It was found that the City breached its statutory obligation to maintain the sidewalk and that this state of non-repair was a cause of the plaintiff’s injuries. Justice Quigley said that the plaintiffs did not need to prove that the state of non-repair of the sidewalk was the cause only that it was acause but for which the accident would not have happened. The City did not satisfy the court that it had taken reasonable steps to maintain the sidewalk in a state of repair or that it could not have known that the sidewalk was in a state of non-repair and therefore the court held that it had not met its required standard of care. Justice Quigley found that the sidewalk was constructed improperly, and while the City undertook remedial work a few years prior to the accident, it was inadequate, leaving the sidewalk in a state of non-repair on the day of the accident. The non-repair created a sidewalk condition that permitted the concrete slurry to become trapped when it pooled on the sidewalk. This accumulation of the slurry which was caused by the condition of non-repair caused the plaintiff to slip and fall making the City liable. In this case, the City could not escape liability by claiming it could not reasonably know of the state of repair of the sidewalk or that it took reasonable steps to prevent the disrepair. Justice Quigley found that the City knew of the state of non-repair, that its system of inspection was inadequate and that even if it was adequate, the City failed to comply with it.

Justice Quigley accepted the evidence of the plaintiff and her medical experts regarding her injuries and inability to work and awarded $120,000 in general damages. He awarded the plaintiff’s husband $20,000 for his loss of care, guidance and companionship under the FLA. The plaintiff’s past and future loss of income was fixed at $171,000 after a 10% reduction had been made because despite a recommendation from her family doctor, the plaintiff had failed to seek sedentary work.

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