Comment 107788

By KevinLove (registered) | Posted January 13, 2015 at 00:06:37 in reply to Comment 107778

One of the purposes of a street is to provide transportation to pedestrians crossing it. So yes, there is a responsibility for the City to ensure that people can do so safely.

Tobogganing on the hill in question was and is illegal, so one can say that tobogganing is not one of the purposes of this hill.

In my opinion, the test for contributory negligence was incorrectly applied in this case. It its appeal, the City of Hamilton asserted that the City agrees with my opinion. The test for contributory negligence was correctly stated by the judge:

"A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might hurt himself; and in his reckonings he must take into account the possibility of others being careless."

In my opinion, a reasonable, prudent man checks out a hill before tobogganing down it.

If the courts are going to assert that it is reasonable and prudent to toboggan down a hill without checking it out first, and that is to be the standard for large awards of lawsuits against the City, then the City really has no choice but to begin to enforce the existing ban on tobogganing.

In my opinion, banning tobogganing is highly undesirable because banning tobogganing contributes to "an epidemic of sedentary behaviour." Resulting in obesity, diabetes, heart disease, strokes, etc, etc. that are far more harmful.

Comment edited by KevinLove on 2015-01-13 00:12:58

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