Raise the Hammer
Would it not be preferable to address liability issues by seeking to prevent injuries, rather than create situations where they are more likely to happen?
By Zachary Strong
Published January 07, 2015
I read an article about tobogganing in the Hamilton Spectator this morning, and it raised some interesting issues for me.
Aside from the obvious concerns that a Millennial would have about over-regulation, I was troubled by the notion that the Hamilton Conservation Authority would consider planting trees on a popular tobogganing hill, and I was hoping to clarify the thinking around this tactic.
From my understanding, in order to prevent injury-based lawsuits at a hill on Governor's Road, the Hamilton Conservation Authority is considering installing small trees on the hill, which they fully acknowledge to be hazards to people who partake in winter tobogganing.
I'm not looking to hang my hat on tobogganing as a raison d'être, but as someone who learned to hold the public safety as my paramount concern, I am struggling to reconcile my understanding of public service with the Conservation Authority's acknowledged intent to create an intentionally hazardous situation for children and their parents.
In addition to the visible hazards of the trees, things like fallen branches, exposed roots, and surface irregularities would all pose hidden hazards to toboggan riders.
In September 2013, Justice R. A. Lococo ruled in the plaintiff's favour on a lawsuit, Uggenti v. Hamilton (City), in which Bruno Uggenti was "seriously inured while tobogganing on reservoir property owned by the City."
After examining the documentation of the Uggenti v. Hamilton (City) lawsuit, it seems that the legal decision includes the following key factors, as identified in an article published by Borden Ladner Gervais LLP:
"In finding the City liable, the Arbitrator relied upon section 3 of the Occupiers' Liability Act (the "Act") which requires occupiers to take reasonable care in all the circumstances to see that persons entering a premises are reasonably safe."
"The Arbitrator found that the City did not meet this obligation. He found that the snow-covered ditch which led to the tobogganing accident was a hidden danger. The City knew about it, but did not take reasonable steps to warn tobogganers of this danger."
"... in most cases where municipal properties like parks are used for tobogganing, municipalities owe a duty to take reasonable steps to ensure that people entering the premises are reasonably safe."
Planting trees on a hill, although it would (hopefully) classify the hill as a 'rural premises that is forested or wilderness premises', seems to defy the reasonable duty of care specified in the Occupiers' Liability Act.
It also seems to me that this lawsuit could have been prevented had the city provided adequate signage and perhaps fencing around the hazard in question.
I claim no legal expertise, and expect that there is a lawyer's advice (and a legal precedent) behind this decision-making process. However, I am wondering whether would be in the City's best (legal) interest to take reasonable steps to remove and identify potential hazards as opposed to creating them?
More importantly, from a humanistic perspective, would it not be preferable to address liability issues by seeking to prevent injuries, rather than create situations where they are more likely to happen?
This secondary approach would also have the side benefit of preserving a winter pastime while respecting the agency of the residents of the City of Hamilton.
I look forward to learning more about the decision-making process. I expect there's a number of factors that I haven't considered, and am excited to learn more about the entire situation.
This article was adapated from a letter to the Hamilton Conservation Authority.
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