Public Commons

Part of Courts Playgrounds Safety

Notes re: call with Jim Kidd August 23, 2007 2:30 Tel: 416-392-3917

Responses are in bold below:

Q. I asked him whether there are any actual court cases re: rink related incidents in Toronto.

A. Jim doesn’t know of any; he is aware of one big case from 5 or 10 years ago in a small municipality in southern Ontario (Sandwich township?). The facts involved an indoor arena shinny game, resulting in damages as a result of the condition of the ice.

[I just looked up and found this case - Stein v. Sandwich West (Township), 1995 CanLII 1239 (ON C.A.) – interesting case in which Gordie Howe testified….

[[http:www.canlii.org/eliisa/highlight.do?text=hockey+injury]]

Stein was rendered quadraplegic after he hit the boards head first as a result of hitting a hole in the ice. Interesting in view of our situation at Dufferin with the difficulties getting the ice properly maintained…. The case went to the Court of Appeal who concluded that the trial judge’s award of $ 8.6 million was appropriate.

There was ample evidence to support the finding that the appellants failed to follow the standard practice of separate flooding of the goal creases and adjacent areas at the end of each 8-hour shift or even at the end of each day to counteract the well-known thinning effect of the Zamboni. The manager Donlon and the two Zamboni operators supervised by him were responsible for this failure. The trial judge concluded that the arena's failure to maintain sufficient ice thickness at the location of the hole constituted negligence and was also a breach of s. 3 of the Occupiers' Liability Act, R.S.O. 1980, c. 322 which imposes a duty on the occupier of premises

... to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

Bain – settled case; tobogganing off west side at Centennial park in the brush where tobogganing was not intended -

Centennial park –decision – people tobogganing where they should not be; hit on evergreen tree to prevent; 20 years ago. City was held liable. City should have anticipated; knew people were using hill, didn’t do enough to stop them. Staff put up a snowfence to protect it; people took it down. Police. [haven’t found this so far in computer database; to do: a manual search which has the old cases.]

Re: the questions I sent him, Jim told me that he doesn’t have the answers; nevertheless as he has been involved in many of the settlements, he is aware of many of the cases we’re inquiring about. He’ll get the exact answers to us.

%strong%1. Rink injuries:%%

Q. In response to a formal FOI request, we received a reply which advised us that there had been 5 rink-related injuries. We'd like to follow up with the following questions: It appears that, since amalagamation, there have been only 5 rink-related claims. Is this still the case?

A. Probably close to this, although it depends on how the injuries were coded in the database. Likely about 5; definitely less than 10. These types of accidents are very unusual and infrequent. The claims are very frustrating – esp. outdoor rinks, as it’s impossible to guarantee the quality of the ice as weather shifts.

Jim recalls only 1 claim that occurred in a context re: shinny hockey, or helmets, and it involved a person who tripped over wood on a bench, nothing to do with ice surface.

Most often claims arise from public skating.

Most of these kinds of claims arise from allegations of insufficient supervision resulting in kids bumping into a claimant. Sometimes they have arisen re: the condition of ice, e.g. one involves a plaintiff wearing figure skates who claimed there was a hole in the ice.

These claims are often very difficult to assess from liability point of view as *claims may not be reported at the time *there is no accident report *staff who attended may have moved

• due to concern with what a judge will say, given the City’s experience with judges in pre-trial conferences in the slip-and-fall cases (who often say that they really can’t find any liability but feel that they have to give the injured person some kind of award)

Q. Where have these injuries occurred?

A. Indoor and outdoor rinks.

What are the nature of the different injuries that have occurred?

There have been no severe injuries on any of the ice rinks; maybe fractures, nothing more serious.

What kinds of claim have resulted from each? No big claims.

How many have been settled out-of-court?

Don’t have exact number.

For what amount?

e.g. $ 10 – 20,000 [check this].

Are any of these matters still in the courts?

Have any of these incidents involved the wearing (or not wearing of helmets)?

No.

We discussed the City's helmet policy and the downside of policy making in general.

Jim is well aware of the dangers of devising policies which are often not, in fact, followed and he thinks it is quite likely that people formulating these policies are often not aware of the potential legal consequences of them.

The only big recreation case that the City has had to pay on is the fellow with epilepsy that we discussed during our last meeting. Policy was a factor in this case.

%strong%2. Playground injuries%%

Jim doesn’t recall any serious injuries; sometimes claims involve concerns a young child who landed on her neck and may experience implications in the future; the limitation periods on these claims are so long that it is of some concern to the City while these claims stay open.

• regular inspections of park; may not be consistent across city
• in defending claims, see supervisor with sheet

In 2000, the City made the decision to replace the existing playground equipment with Canadian Standards Association approved equipment. One of the key elements of this whole scale replacement was regular inspection. There is currently no money to carry out these inspections.

Q. Since 2000, how many playground injuries have occurred?

Very few. similar in frequency to rink related injuries. They have been swing-related accidents, involved trouble with the S hooks.

Q. Where have these injuries occurred?

A. Swings.

Q. What kinds of injuries have resulted?

A. Mostly minor.

Jim doesn’t recall any serious injuries; sometimes claims involve concerns a young child who landed on her neck may experience implications in the future; the limitation periods on these claims are so long that it is of some concern to the City while these claims stay open.

Q. What kinds of claim have resulted from each?

A. 1 or 2 for nominal amounts claims.

Q. How many have been settled out-of-court?

A. Aside from those one or two cases above, there has been only one more costly settlement involving an overweight mother on playground equipment who slid across a 10 foot long cable stretch. The cable got caught on track, she fell down and hurt her back. The equipment was fairly new; inspections came into play; was one sign that equipment meant for - ended up settling - $ more substantial; >10,000 <100,000.

Q. For what amounts?

A. $ 10 – 20,000

Q. Any reported cases?

A. There are no reported cases re: playground injuries that have occurred in the city of Toronto in the last 20 -25 years.

Are any of these matters still in the courts?

A. there are fewer than 5 still open and being litigated.

(:title Call With Jim Kidd 23 August 2007:)