DATE: 20060208
DOCKET: C41643
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B E T W E E N : |
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NORMA KAMIN and HAROLD KAMIN |
Alfred M. Kwinter
and Jason D. Singer |
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- and - |
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KAWARTHA DAIRY
LIMITED |
Timothy P. D.
Bates |
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Heard: December 20, 2005 |
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On appeal from the judgment of Justice Sarah E. Pepall of the Superior Court of Justice dated March 11, 2004, reported at [2004] O.J. No. 1056.
[1] Ms. Kamin appeals the dismissal of her claim against the Kawartha Dairy Limited for damages resulting from falling in its parking lot on July 18, 1999 while walking with her husband and granddaughter from their car to the dairy. The parties agreed to the amount of damages and the case proceeded to trial on the issue of liability.
[2] Although the trial judge found that the dairy had in place a system of inspection of the parking lot, she concluded that it was inadequate and failed to meet the standard in s. 3(1) of the Occupier’s Liability, R.S.O. 1990, c. O.2, s. 3(1). However, notwithstanding her finding that the parking lot was unsafe, the trial judge dismissed the appellant’s claim on the ground that neither she, nor her husband, knew the precise location in the parking lot where she fell or how she fell. In doing so, the trial judge relied on the opinion of Urquhart J. in Cock v. Windsor, [1944] 2 D.L.R. 778 (Ont. H.C.) that in a claim against a municipality for injuries suffered in a fall on a sidewalk, the appellant has the onus of establishing where she fell, that there was a depression at that location and that the depression was the cause of the fall.
[3] As the trial judge was not prepared to find for the appellant unless she was able to identify the precise location of her fall, in my view she erred in her causation analysis by setting too high the onus that the appellant was required to meet. There may be some cases, of which Windsor is one, where the ability to identify the exact location of a fall will be a significant factor in the causation analysis. However, as I will explain, this is not one of them.
[4] While Windsor may have represented the state of the law respecting proof of causation 60 years ago, it has been replaced on this issue by Snell v. Farrell, [1990] 2 S.C.R. 311 at paras. 29 and 30, where it was held that causation need not be determined by scientific precision. At para. 29, Sopinka J. adopted the following statement of Lord Salmon in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475 at p. 490 in which he held that causation is “…essentially a practical question of fact which can best be answered by ordinary common sense rather than metaphysical theory”. Snell v. Farrell was applied in Athey v. Leonati, [1996] 3 S.C.R. 458, where the Supreme Court held that liability is established where the defendant’s negligence caused or materially contributed to the plaintiff’s injury.
[5] There was considerable, uncontradicted evidence that the respondent’s entire parking lot was in very poor condition. It had last been paved in 1979 and was at the end of, or had exceeded, its life‑span. There was testimony that factors such as sunlight, gasoline, winter conditions, snowplows and vehicular traffic can shorten the life‑span of an asphalt parking lot similar to this lot. The paving was uneven, with many depressions and fissures. Photographs of the parking lot taken at different times, about five months, about a year and more than four years after the accident all disclosed that it was in a poor state of repair and required repaving. From the photographs, the disrepair was so extensive that it is not surprising that the appellant and her husband were unable to point with precision to the location of her fall. It was this evidence of disrepair on which the trial judge relied in finding that the respondent was negligent in failing in its duty of care to those walking on the parking lot to keep it reasonably safe for their use.
[6] In addition, the appellant’s husband testified that when his wife fell he observed that “the ground beside her was not even” and that it was “chipped”. As the owner of a shopping plaza, his opinion of the lot was: “It needs work. It needs resurfacing.” He added that “the parking lot was not clean or well maintained”, meaning “not safe, not safe”. The trial judge, while sceptical of Mr. Kamin’s testimony, did not reject it.
[7] The appellant provided evidence that she was a careful person who was not prone to accidents. She testified that it was a beautiful day, that she was wearing running shoes that fit properly and were laced, and that she had no difficulty walking. She has good eyesight and had no tendency to trip over her own feet. She had no history of falling. Her testimony was confirmed by her husband who stated she was not a clumsy person. He added that his wife had never tripped and fallen before this incident. This evidence was not contradicted by the respondent, which produced no evidence suggesting any alternative cause of the accident other than the state of disrepair of its parking lot.
[8] On the record in this case, the failure of the appellant to recall the precise location of her fall should not have resulted in the trial judge’s finding that she had failed in the proof of the cause of her injuries. As the evidence established, the appellant fell on the dairy’s parking lot which was in an unsafe condition caused by its failure to maintain it properly. Had the trial judge not erred in her causation analysis by setting too high an onus for the appellant to meet, there was ample evidence on which to find that the appellant’s injuries were caused, or materially contributed to, by the respondent’s negligence. This is particularly so given that there was no evidence of any other probable reason for her to have fallen. In my view, the trial judge erred in failing to find, or to draw the only reasonable inference, that on all the evidence the respondent’s negligence caused or materially contributed to the appellant’s fall and her resulting injuries. Applying the causation analysis discussed in Snell v. Farrell and Athey v. Leonati, in my view the probable reasonable cause of the appellant’s fall was the state of disrepair of the asphalt surface of the respondent’s parking lot.
[9] As the trial judge erred in law, this is a proper case for this court to interfere: Housen v. Nikolaisen, [2002] 2 S.C.R. 236. Pursuant to s. 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, this is an appropriate case in which to make the order that ought to have been made by the trial judge. On the basis of the foregoing analysis, it is my opinion that the appellant proved that her injuries were caused by the respondent’s negligence.
[10] For all the foregoing reasons, I would allow the appeal, set aside the judgment of the trial judge, and order that the appellant is to have judgment against the respondent. As damages were agreed upon at trial in the sums of $87,500.00 for general damages, $7,114.25 for special damages and the Ontario Ministry of Health’s subrogated interest of $9,617.01, the appellant will have judgment accordingly, together with pre‑judgment and post‑judgment interest at the appropriate rates. As well, the appellant is to have her costs of the trial which are to be assessed if counsel cannot agree on their amount. She will also have her costs of the appeal on a partial indemnity based fixed in the amount of $15,000, inclusive of disbursements, plus GST.
“S. Borins J.A.”
“I agree J. M. Simmons J.A.”
“I agree Robert P. Armstrong J.A.”