Cyclist sustains Brain Injury and is awarded Damages against Municipality

Posted by Injury Lawyers of Ontario on December 11, 2017

Labanowicz v Fort Erie (Town) (2017) is a civil suit involving a plaintiff who fell while cycling and sustained a life-altering brain injury, after coming into contact with an unmarked obstacle in the middle of a paved municipal trail.  Pursuant to the Occupiers’ Liability Act, the plaintiff’s claim alleged that the municipality was negligent in causing the unsafe condition, by failing to mark or warn cyclists of a housing on the trail that could cause injury if struck by an unsuspecting cyclist.  The judge in this case found in favour of the plaintiff, as the empty housings on the trail were a known hazard and there were recommendations previously made to Town Council to mark these obstacles.

Background

The “Niagara Trail” is a municipal trail composed of paved asphalt about 3 meters in width. In July 2006, the plaintiff and her friend were riding single-file along the Trail and preparing to stop at an intersection that transected the trail, when the plaintiff’s front wheel struck an empty housing, causing her to fall to the ground and suffer a head injury. The housing usually contains a bollard, which is a four-foot tall wood post used to control unauthorized motorized vehicle access to the trail, but these bollards are sometimes removed or vandalized. 

The plaintiff was transported by ambulance to the hospital, but has no memory of what happened immediately after her cycling accident, including her treatment at the hospital. The plaintiff’s friend testified that he came to her aid and found her face down on the ground. He stated that when he helped her to her feet, she was in a state of great confusion, incoherent and unable to answer his questions, and had a bump on her head, and scratches on her face, elbow, leg and knee. 

The plaintiff was diagnosed with concussion and the ER physician kept her at the hospital overnight for observation. She continued to be in an agitated and confused state at the hospital and throughout the following day, as reported by her friend who remained with her throughout.

In the four years after the accident and before the trial, the plaintiff suffered significant changes to her personality and cognitive abilities.   Three of the plaintiff’s work colleagues -- who the judge found to be credible, straightforward and understated-- testified that, prior to the accident, the plaintiff met the demands of her job and was always co-operative and friendly.  However, almost immediately after the accident, the plaintiff became unfocused, lacking in concentration, forgetful and unable to manage her workload.  She was also continuously fatigued and lacking in energy, frequently irritable, and her productivity and work performance were drastically reduced.  Due to sleep deprivation, the plaintiff was frequently late and missed many days of work, which she tried to make up by working on her vacation days. The plaintiff’s colleagues testified that they did not believe she was exaggerating or feigning her difficulties, but rather, attempted to minimize her problems in the hope that she would soon recover.

The plaintiff saw a variety of physicians in connection with her symptoms and attended the Acquired Brain Injury Clinic at the Toronto Rehabilitation Institute (TRI) and later, the Head Injury Clinic at St. Michael’s Hospital (HIC).  A psychiatrist associated with HIC, who the plaintiff saw on at least 12 occasions within 2 years, reported that she suffered from ‘post-concussion syndrome’, and the defendant did not present any evidence to dispute this opinion. 

Despite all the medical care she received, the plaintiff’s cognitive issues persisted and continued to significantly impact her job performance. In early 2012, her employer served notice that her position as an IT specialist would be declared surplus before the end of the year, and she was given several options going forward, which included exiting with pay, early retirement, or seeking another position.  However, she was later advised that her request for redeployment had been rejected since she (presumably) did not meet the qualifications for any other jobs that were available.  Since October 2012, the plaintiff has not been employed in any capacity.

Was the municipality liable for the plaintiff’s injury?

The municipality acknowledged that the accident resulted when the plaintiff’s bicycle came into contact with the empty bollard bracket, but disputed liability in the accident.  Under the Occupiers’ Liability Act s.3(1), an occupier of a premises owes a duty to take reasonable care in all the circumstances of a case to see that persons entering the premises are reasonably safe while on the premises.  Section 4(1) of the Act qualifies this duty of care, in that s.3(1) does not apply with respect to risks willing assumed by a person who enters the premises, but in that case, the occupier owes a duty of care to the person to not create a danger with the deliberate intent of doing harm, or act with reckless disregard, to the person or their property.

The judge noted that the Municipality’s system of securing the bollard was haphazard, particularly as it was aware that bollards often went missing or were vandalized.  The Municipality’s Manager of Parks and Open Spaces, Ms. Hansen, testified in cross-examination, that “a missing bollard created a greater danger to cyclists than an unpainted bollard since the housing was less conspicuous”.  In a 2003 report to Council on Trail Safety Improvements that was undertaken by Ms. Hansen, she recommended that bollards be painted with a bright colour, with diamonds painted around existing bollards and/or additional reflective bands on existing bollards. Ms. Hansen also cautioned Council that such actions could be undertaken at minimal cost “to reduce exposure to liability from potential accidents”.  Although many bollards on the Trail were subsequently marked with a diamond, the bollards in the area where the accident occurred were not marked in any way.  

The judge agreed with plaintiff’s counsel that the existence of an unpainted and relatively easily removable bollard which exposed a housing above grade, was counter to the safety recommendations presented to Council and amounted to reckless disregard towards the safety of persons using the Trail.  The judge concluded that the plaintiff’s accident occurred due to the Town’s reckless disregard to the presence of cyclists using the Trial. 

Contributory Negligence

On the issue of contributory negligence, the defendant argued that the accident would not have happened if the plaintiff’s friend had stopped and called to advise the Town of the missing bollard when they earlier passed the section of the trial where the cycling accident occurred.  The defendant further argued that the plaintiff’s injuries resulted because she was not keeping a proper lookout and was not wearing a helmet.

The judge did not accept the defendant’s first argument as, at the time of the accident, the plaintiff was (properly) paying attention to the upcoming intersection and traffic, and to bringing her bicycle to a safe stop, which required her to look in the distance and above where the bollard should have been.  Also, the argument of ‘proper lookout’ may have merit if the location of the bollard had been painted with diamonds or otherwise identified, but not in a circumstance where a plaintiff failed to see a hazard that was inadequately marked.

On the second issue, the judge noted that a helmet would not have prevented the accident, but it may have reduced the severity of injuries.  However, the judge expressed caution about excepting statistical generalizations, including the defendant’s evidence that “literature suggests that bicycle helmets prevent up to 88 percent of brain injuries.” The judge found it was uncertain that the plaintiff would have fallen into the 88% group, and hospital records of her actual injury were inconclusive.  Accordingly, the judge held the defendant 100 per cent responsible for the accident.

An award for non-pecuniary/general damages, special damages and past housekeeping expenses was agreed to and settled prior to the trial.  In addition to these previously agreed-to damages, the judge awarded the plaintiff the amount of $737,339.72 for past and future loss of income.

If you suffered injuries in a cycling accident or another incident caused by a negligent party, call an experienced St. Catharines and Niagara area cycling accident lawyer or an Injury Lawyer of Ontario member in your community to find out about your legal rights in the matter and obtain skilled representation against the 'at fault' party and their insurance company.


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