Kennedy v. London (City), 2009 CanLII 10675 (ON SC)

COURT FILE NO.:  46458

DATE:  2009-03-10

 

ONTARIO

SUPERIOR COURT OF JUSTICE

 

 

B E T W E E N:	)
	)
JAMES E. KENNEDY	) ) )	Kevin A. Egan, for the Plaintiff
	)
Plaintiff	)
	)
- and -	)
	)
	)
THE CORPORATION OF THE CITY OF LONDON	) ) )	Janice L. Page, for the Defendant
	)
Defendant	) )
	)
	))	HEARD:  September 29 & 30, 2008 at London.

 

LEITCH, R.S.J.:

 

[1]          On September 20^th, 2004 Mr. Kennedy fell while riding his bicycle on the Thames Valley Parkway (the “Pathway”), located within the boundaries of the park land owned by the Corporation of the City of London (the “City”).  It is agreed that Mr. Kennedy sustained damages of $40,000.00.  The sole issue in the action is whether the City is liable for his damages. 

  Mr. Kennedy’s experience as a cyclist and his experience on the Pathway

[2]          Mr. Kennedy bought his bike on September 13, 2004. Previously, he had ridden a bike as a child and for a few years in the early 1980s.

[3]          Mr. Kennedy rode his new bike a couple of times prior to the accident on September 20, 2004. Specifically, on September 15, 2004, Mr. Kennedy rode on the portion of the Pathway north of Ada Street and rode by a post (“bollard”) described in more detail below. On the day of the accident he rode by the same bollard while riding out to Meadow Lilly. He then turned around and rode back along the Pathway and collided with the bollard as described below.

[4]           Therefore, before the accident Mr. Kennedy had very limited experience riding his bike and had ridden on the Pathway only twice.

  What was the cause of the accident?

 

[5]          Mr. Kennedy was riding on the portion of the Pathway north of Ada Street.  In that location the Pathway curves and slopes down continuing on underneath the Adelaide Street bridge.  It was a nice clear evening sometime after 6:00 p.m.  It was not raining and there was no sun in his eyes. 

[6]          There is a bollard in the middle of the Pathway at the point where the Pathway dips down and curves left. 

[7]          Mr. Kennedy testified that as one approaches this point, it is difficult to judge the distance between the bollard and the fence to the right because of the angle of the Pathway.  He also described the Pathway in that location as being a little bit overgrown with vegetation  creeping on to the right side of the Pathway. He described the Pathway as “pinched in” on the right, whereas there was lots of room on the left. The Pathway is elevated above the river at this point.

[8]          As he approached the bollard, it appeared to Mr. Kennedy that there was a tight squeeze between the bollard and the right fence. The Pathway curved sharply to the left and down and, as Mr. Kennedy testified, it was impossible to see if anybody was coming up on the left because of the slope of the Pathway.  He stayed right.  Unfortunately the handlebars or the pedals on the left side of his bike clipped the bollard and he fell.

[9]          He acknowledged there was enough space to stay on the right side of the Pathway and avoid the bollard if he had seen the bollard in time.  However he didn’t see the bollard until shortly before he hit it. He described coming around the curve of the Pathway and suddenly seeing the bollard.     

[10]      At trial, Mr. Kennedy indicated that it was hard to say what his speed was but when referred to his evidence on discovery that he was riding at about 10 – 12 kilometres/hour he agreed that he was probably maintaining that speed. He testified he was looking about 15 feet ahead.  His evidence respecting his speed is not consistent with the notation in the hospital emergency record that “patient was bicycling …down an incline about 25 km/h ‘a fairly fast speed’”.  However, I accept Mr. Kennedy’s evidence that he was riding at 10 to 12 kilometres an hour. Mr. O’Connor described 15 km/hour as a modest speed and indicated that the average rider goes 13-20 km an hour.  Considering how recently Mr. Kennedy had purchased his bike and how infrequently he had ridden it, it is reasonable that he would be riding at a modest speed.

[11]      I find that the accident resulted from Mr. Kennedy’s inability to avoid the bollard placed in the middle of the Pathway. It remains to be determined whether the City breached its duty to Mr. Kennedy and whether Mr. Kennedy contributed to his damages by his own fault or negligence.

  The duty of care owed by the City

[12]      Section 3(1) of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, provides that an occupier of premises owes a duty of reasonable care to persons entering the premises.  Section 3 of the Act provides as follows:

3. (1)  An occupier of premises owes a duty 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.

(2)  The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on the premises.

(3)  The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty.

[13]      However, section 4(1) of the Act states that the duty of care mandated in s. 3(1) “does not apply in respect to risks willingly assumed by the person who enters on the premises.”  In those instances, the occupier’s duty to the person entering is simply “to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.”

[14]      Further, s. 4(3) states that “a person who enters premises described in subsection (4) shall be deemed to have willingly assumed all risks” and, therefore, the occupier owes only the lessened duty of care described in s. 4(1) if the circumstances are as described in s. 4(3). Subsection 4(3)(c) describes circumstances applicable to this case:

4(3)(c) where the entry is for the purpose of a recreational activity and,

(i) no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or a non-profit recreation club or association, and

(ii) the person is not being provided with living accommodation by the occupier.

 

[15]      Importantly, subsection 4(4)(f) lists “recreational trails reasonably marked by notice as such” as a form of “premises” leading to the lessened duty of care mandated by s. 4(3).  A key issue in the case is whether the accident occurred on a recreational trail.

 

[16]      Mr. Kennedy relies on s. 3(1) of the Act and claims the City breached its duty to users of the Pathway by failing to design and maintain the Pathway in a safe condition and in failing to warn users of potential hazards. 

[17]      Conversely, the City argues that the duty prescribed in s. 4 of the Act applies because the Pathway is a recreational trail.

[18]      In defining the Pathway as a recreational trail, the City submits that on entering the Pathway Mr. Kennedy necessarily assumed all of the risks arising from its use.  The City thus claims that the only duty owed to Mr. Kennedy was to not intentionally create dangers on the Pathway (which is not alleged), or to not act with reckless disregard towards users of the Pathway.

[19]      Further, regardless of its duty, the City submits that Mr. Kennedy’s own negligence contributed to the accident.

  Is the Pathway a recreational trail reasonably marked by notice as such?

[20]      The City’s parks bylaw, in place at the time of the incident, defined a multi-use pathway as follows:

 “Multi-use pathway” means that part of a park that has been improved with a hard surface and intended for a variety of uses including pedestrians, in-line skating and vehicles, excluding motor vehicles, horses and horse-drawn conveyances of any sort and motorized snow vehicles.

[21]      According to Mr. Coxhead, the City’s Director of Parks and Recreation, a park’s bylaw sign is generally located at all points of access to the City’s parks for the purpose of identifying prohibited activities. Mr. Kennedy observed one of the City’s parks bylaw signs about three-quarters of a mile from the scene of the accident. 

[22]      Mr. Coxhead testified that these signs highlight the major prohibited activities, including:  operating a motor vehicle except on a roadway or in an authorized parking area; operating bicycles or in-line skates in excess of the posted limits or greater than 30 kilometres an hour; damaging any trees or shrubs; failing to deposit refuse in containers provided; and playing or practicing golf. The sign is titled “Prohibited Activities in all Parks and Recreation Areas”.

[23]      Mr. Kennedy acknowledged that the signage shows the Pathway could be used by pedestrians, in-line skaters, bicyclists and dog walkers.

[24]      The sign also states at the bottom, under the heading “Winter Maintenance”:  “Park property is not maintained during winter season.  Any maintenance to this area under winter conditions is gratuitous.  Use at your own risk.”

[25]      The City produces a Bike Map: “A Complete Guide to Cycling Paths & Routes in the City of London”.  On the map the Pathway is identified by a yellow line whereas signed road routes, unsigned road routes, and paths adjacent to the street are identified by other coloured lines. The map contains a chart titled “Rules of the Road” which outlines safety tips “on street bike routes” and another chart titled “Thames Valley Parkway Multi-Use Paths” which outlines directions such as “share the pathway”, “keep to the right”, “ride slowly”, and “be alert”.

[26]      The map is mounted on a sign erected on the Pathway titled “Thames Valley Parkway.” This sign also contains a chart titled “Pathway Use” which lists the directions described in the preceding paragraph.

[27]      The City takes the position that the Pathway is a recreational trail and it gives notice of that characterization both in the City’s Bike Map and in the City’s parks bylaw signs.

[28]      In support of his contrary position that the Pathway is not a “premise” described in subsection 4(4)(f) of the Occupiers’ Liability Act, the plaintiff makes 3 arguments. First, that the Pathway was used for more than only recreational purposes – commercial vehicles could enter the Pathway so as to access a billboard adjacent to it and commuters used the Pathway, and neither use was prohibited by the City’s parks bylaw. Second, that the City did not adequately mark the Pathway as a recreational trail.  Third, that not only was the Pathway not marked as a recreational trail but the parks bylaw sign was misleading. While the sign indicated that one had to use the Pathway at one’s own risk during the winter, it was not clear that one assumed any risks during the summer months.

[29]      I will deal first with the plaintiff’s argument that the Pathway’s use was not limited to recreation. As the plaintiff noted, Mr. Coxhead was aware that commuters used the Pathway and he agreed that a lot of people travelled back and forth to the University of Western Ontario on the Pathway. He also acknowledged that the location of the bollard accommodated the need for commercial vehicles to access the billboard. Both Mr. Coxhead and Mr. O’Connor, who was called by the plaintiff as an expert in the design of bicycle pathways, agreed that commuters were not prohibited from using the Pathway.

[30]      The use of a trail, roadway or path is relevant to the issue of whether it is a recreational trail within the meaning of subsection 4(4)(f) of the Occupiers’ Liability Act. In Moloney v. Parry Sound (2000), 183 D.L.R. (4^th) 121, the Ontario Court of Appeal agreed with the trial judge that the trail in issue in that case was more than recreational stating: “The accident occurred on a paved roadway used regularly by cars for access to and egress from a parking lot.  The roadway was also part of the fitness path.”  Because of the commonness of vehicular traffic on the trail, it was deemed to be a roadway and not a recreational trail and s. 4 of the Act was not applicable to lessen the duty of care owed by the defendant.

[31]      However, in this case the additional uses of the Pathway highlighted by the plaintiff are not inconsistent with the Pathway being a recreational trail. These circumstances and indeed the actual trail in issue are identical to those considered by Misener J. in Dally v. London (City) (2004), 50 M.P.L.R. (3d) 133 (Ont. S.C.J.) [Dally]. In Dally, Misener J. held that a path on which the plaintiff suffered a roller-blading accident due to debris on the pathway was in fact a recreational trail.  In identifying the path in question as a recreational trail, Misener J. stated at para. 44:

44       For my part, I am bound to say that the ordinary Canadian would consider the pathway a trail, and the area of the fall as part of it, and so I should do so as well.  It was designed for pedestrian use and not as a roadway.  Indeed, concrete posts prevent its use by motor vehicles.  It runs for a very long distance, at least in a relative sense.  Although there is one brief interruption, it runs essentially continuously over the full distance I have described.  More importantly, it was not designed to permit the efficient movement from one place to another, but rather, just as the verb “to trail” connotes, it wanders aimlessly, as the river wanders aimlessly, through the City, and, for the most part, it runs through the few remaining natural areas of the City, as far removed as possible from its density.  To my mind, those are the ingredients of a trail, and indeed its most appropriate description that is found in the by-law to which I earlier referred – “a paved fitness trail.”

 

[32]      Justice Misener’s decision in Dally – and the understanding of “recreational trails” therein put forth – was followed by Campbell J. in Genua (Litigation guardian of) v. North York (City), [2006] O.J. No 5647 (S.C.J.) [Genua].  Campbell J. concluded that the trail in issue in Genua was recreational even though a portion of it was paved. He distinguished a decision of the British Columbia Supreme Court in Whitney v. University College of the Cariboo, 2004 BCSC 1110 (CanLII), [2004] B.C.J.  No. 1766 (B.C.S.C.), in which the defendant “was taken to know that the portion [of the trail] in question [which Campbell J. described as “a short-cut trail in part of an undeveloped land with the college boundaries”] was being used regularly for purposes other than recreation”.

[33]      I agree with the reasoning of Misener J in Dally, and conclude as he did that the Pathway is a recreational trail. This conclusion is consistent with the design and location of the Pathway and the types of activities on the Pathway prohibited by the parks bylaw. It is also consistent with Mr. O’Connor’s acknowledgment on cross-examination that he considered the Pathway a recreational trail and that, as he stated in his report, the Pathway was “designated as a primary recreational network, a multi-use pathway system intended and expected to accommodate cyclists with low to high level of experience and skill, multiple use of pathways for cycling and other recreational uses.” 

[34]      I turn next to the other arguments of the plaintiff which relate to the adequacy of the notice respecting the Pathway. The plaintiff emphasized that the notice requirement does not appear to be considered in Dally.

[35]      I am satisfied that the Pathway was reasonably marked as a recreational trail both by the parks bylaw sign erected at various points along the Pathway and by the information specified in the City’s bike map. In Genua, Campbell J. found at para. 17 that                          

                                                                     17                 The trail in question was being used for recreational purpose, although the   portion where the accident occurred was paved. The sign at its commencement headed “Park By-Laws” stated there was pedestrian/bicycle access only, that the walkway would not be maintained in winter and that motorized vehicles were prohibited – all notice provided is consistent with a recreational use.

[36]      Here the City parks bylaw sign contains the same type of information and I concur with Campbell J.’s conclusion that such notice is consistent with recreational use. Finally, in my view, subsection 4(4)(f) does not require that notice of a recreational trail include the exclusion of liability that results from such a characterization. The assumption of risks is deemed by the provisions of s. 4(3) and is not dependent on the City giving notice that it has limited liability.

[37]       As a result of these conclusions, I am satisfied that the Pathway is a “premise” as described in subsection 4(4) (f) of the Occupiers’ Liability Act.

[38]      Mr. Kennedy’s entry on to the Pathway was for the purpose of a recreational activity. He paid no fee for his entry or activity, and was not provided with living accommodation by the City.  Therefore as a result of the provisions of s. 4(3) of the Occupiers’ Liability Act, Mr. Kennedy is deemed to have willingly assumed all risks and is thus owed the lessened duty of care described in s. 4(1) of the Act..

  The design of the Pathway

[39]      Mr. Shane Maguire, a professional engineer who joined the City in 1993, testified that in 1995 an outside engineering firm was hired to do the design and project administration with respect to construction on the Adelaide Street bridge. As part of that project the Pathway on the west side of Adelaide Street was connected to the Pathway on the east side of Adelaide Street.

[40]      The portion of the Pathway in issue was constructed in 1995 in accordance with engineered drawings, and was modified in 1999 in accordance with other engineered drawings.  

[41]      In 1999, the portion of the Pathway approaching the bollard in issue became more curved. 

  Maintenance of the Pathway

[42]      As described in the parks bylaw sign, the Pathway is not maintained in the winter. However, as Mr. Coxhead explained, there is repeated machine sweeping of the Pathway throughout the non-winter months.  Sweeping occurred about once a week in 2004.

[43]      While the City staff sweep the Pathway, they note where they have swept, the condition of the Pathway, and anything out of the ordinary such as, for example, a branch grown out over the Parkway.

[44]      There is no issue with respect to the City’s maintenance of the Pathway, as distinct from the bollard discussed below.

  The location and condition of the bollard which Mr. Kennedy hit

[45]      The concrete Pathway is three metres wide as called for in the design.  The bollard is a steel post fixed in the middle of the pathway.

[46]      As Mr. Coxhead and Mr. McGuire testified bollards are used to restrict vehicular access. They are erected primarily for safety purposes to prevent vehicles from accessing the Pathway.  They acknowledged that the bollard in issue was in an unusual location. Most bollards are put at an entrance to the Pathway from a road. This bollard was placed on the Pathway 46.4 metres north of Ada Street. The reason for the bollard being there was so up to that point vehicles could enter the Pathway to access a billboard erected adjacent to the Pathway.

[47]      According to the 1995 plans, the bollard was to be 1.2 metres high. It was to be painted and it was to be removable.

[48]      A paint colour was not specified. However, as Mr. Maguire testified, while the greatest benefit of painting was to reduce rusting yellow paint would also enhance visibility.  As a result, in 1995 when the bollard was erected it was painted yellow.

[49]      Mr. Maguire attended the site several times and noted that the bollard was .92 metres tall and not the 1.2 metres called for in the design.  It was not removable and had been welded in place. The fact that a bollard is removable is significant for maintenance. And the fact that it was not removable did not raise a safety concern with either Mr. O’Connor or Mr. McGuire.

[50]      On May 15, 2004, the City staff sweeping the Pathway noted the condition of the bollard as “fair.” Mr. Coxhead explained that if something was marked “fair” there was no additional attention paid to it until it was marked “urgent.” The City acknowledged that at the time of the accident the bollard needed some attention, including painting.

[51]      Mr. Kennedy described the bollard as being fairly rusty. It was similar in colour to the fall foliage.

[52]      Mr. O’Connor inspected the site of the accident on November 17, 2006. He confirmed that the conditions he observed were similar to what can be seen in the photographs Mr. Kennedy took 3 weeks after the accident, except that in November 2006 reflective material had been added to the bollard.

[53]      Mr. O’Connor also described the bollard as “rusty.” According to Mr. O’Connor, the fact that it had become rusty and was somewhat shorter than intended in the design specifications decreased its visibility which raised a concern over safety.

[54]      Mr. O’Connor found the bollard difficult to see, particularly because it was rusty and blended into the Pathway and the vegetation that bordered the Pathway. He also found that the vertical elements of the bollard blended in with the vertical elements of the handrail on the Pathway. According to Mr. O’Connor the bollard was not plainly visible.

[55]      Mr. O’Connor referred to TAC Stopping Sight Distances which he defined as “the distance required by a cyclist to come to a complete stop upon spotting an obstacle”. As he noted, “stopping distance is a function of perception and reaction time, tire/surface friction co-efficient, grade, cyclist speed and the braking capabilities of the bicycle”. These calculations assume the cyclist is looking for the obstacle.

[56]      Mr. O’Connor testified that when you observe the bollard it appears to be fairly tight to the railing. Mr. O’Connor was of the opinion that the location and condition of the bollard was a safety hazard as described in more detail below.

[57]      On the other hand, Mr. McGuire’s opinion was that the bollard in question was visible and as a result safe. He had no concern with respect to the placement of the bollard and when he stood on the curved portion of the Pathway 33 metres away from the bollard he could see the bollard.  Mr. Maguire testified that there is ample time to stop when you are able to see the bollard 33 metres away. He acknowledged that when he saw the bollard from that location he was standing stationary and knew he was looking for the bollard. Also, by that time the City had placed reflective tape on top of the bollard.

[58]      Mr. McGuire referred to the TAC Stopping Sight Distances commented on by Mr. O’Connor and pointed out that based on those calculations a cyclist traveling on wet pavement at a speed of 28.5 km/hr on about a 1% down grade would require 33 metres to stop. Thus, in Mr. McGuire’s opinion there was sufficient stopping sight distance particularly if one takes into account that because of the curves of the Pathway cyclists should be proceeding cautiously at reduced speeds (in fact I have found that Mr. Kennedy was traveling at a modest speed). Furthermore, Mr. McGuire pointed out that because the bollard did not obstruct the entire Pathway, cyclists were not required to stop and could ride around the bollard. 

[59]      Mr. Coxhead similarly considered the bollard was visible and, as a result, safe.

The negligence issue – did the City meet its standard of care described in s. 4(1) of the     Occupiers’ Liability Act?

[60]      The City is subject to the lessened duty of care described in s. 4(1) of the Occupiers’ Liability Act. With respect to this reduced duty of care, it is important to note that the City must not act with reckless disregard and cannot create a danger with the deliberate intent of harming persons who use the Pathway. While it has not been alleged here, it is clear that the City did not intend to deliberately harm users of the Pathway.

[61]      There is no issue respecting the width of the Pathway or the clearance on either side of the bollard. As previously noted, there is no issue with respect to the condition of the Pathway itself. Mr. O’Connor recommended that bollards should be flexible and should tip down or be removable. Indeed the specifications for this bollard called for it to be removable. However, I am satisfied that the fact that the bollard was fixed did not impact on its safety.

[62]      The question is whether the City acted with reckless disregard towards Mr. Kennedy by how and where the accident-causing post was placed in the Pathway.

[63]      In Herbert et al v. The City of Brantford (2006), 29 M.P.L.R. (4th) 92 (Ont. S.C.J.) [Herbert], Hambly J. neatly summarized the standard of care for recreational trails under s. 4 at para. 13:

13               Pursuant to the Act a person who enters on a recreational trail shall be deemed to have willingly assumed the risks of doing so subject to a duty of the occupier of the trail “to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.”

 

[64]      As an aside, Hambly J. notes the historically conflicting definitions of the word “reckless”.  Turning to Cormack et al. v. Township of Mara et al. (1989), 1989 CanLII 4279 (ON CA), 59 D.L.R. (4th) 300 (Ont. C.A.) [Cormack], and its readings of Robert Addie & Sons (Collieries) Ltd. v. Dumbreck, [1929] A.C. 358 H.L., and Herrington v. British Railways Board, [1972] 2 Q.B. 107 (C.A.), Hambly J. states at para. 21 that there has not been a definition of recklessness with respect to recreational trails:

 

21         … Counsel for the defendant states the following in her factum: “It is further submitted that no cases have thoroughly analyzed the meaning of ‘reckless disregard’ as it relates to the planning, design and construction of a ‘recreational trail’ in the context of section 4(4) of the Occupiers’ Liability Act”.  I agree with this submission.

 

[65]      While Hambly J. did not provide an explicit definition of “recklessness”, he nonetheless found the defendant city to be reckless.  In holding that the cyclist Plaintiff was injured by being forced off-path to avoid debris on the pathway, Hambly J. found that the dangers and hazards on the shoulder of the path were not reasonable and constituted a dangerous trap.  Distinguishing the case before him from Cormack, Hambly J. determined that in failing to maintain the bicycle path and its shoulder as safe, the City defendant acted with reckless disregard, particularly since it ought to have known that the conditions on the path were unsafe and that the path was used primarily by cyclists who could be hurt in precisely this kind of scenario.  At para. 22, Hambly J. stated:

           

           22                Cormack can be distinguished on its facts because there is no question that the City of Brantford knew that the trail was used regularly by bicyclists.  The narrow lane where the plaintiff was traveling and the boulders, rocks and concrete immediately adjacent to the Trail clearly caused the accident and the plaintiff’s injuries.  The City of Brantford did not comply with the recognized standards in providing a wider path and a recovery zone.  It could easily have done so by laying down more asphalt and by laying down sod adjacent to the asphalt after burying the boulders, rocks and concrete.  By failing to do so, in my view a trial court could easily find the City acted “with reckless disregard of the presence of the person.”

 

[66]      I conclude that in this case the City acted with reckless disregard towards cyclists such as Mr. Kennedy by its placement of the bollard in this location without any warning devices. It was obvious that if a cyclist ran into a bollard they would hurt themselves. I agree with Mr. O’Connor that bollards should be used sparingly and not put in places where they create a safety issue, such as the centre of the Pathway. Further, as he testified, because of visibility issues they are normally used with other warning devices such as painted lines, stop signs, paint or signage.  When bollards are used alone they are normally placed at the side of a path because of these visibility and safety issues. 

[67]       Mr. O’Connor observed that the City utilized bollards at crossings, intersections of paths, transition/turn points, entrances or exits, road crossings, bridge abutments or when access is restricted.  However, this particular bollard was used differently. Indeed as previously noted, Mr. Coxhead and Mr. McGuire acknowledged the bollard was used unusually here. It was well in – 46 to 47 metres – from the road, and thus in a location where one would not expect it. Further, there was no reason for the bollard to be utilized in this location. As Mr. O’Connor testified there were other and more effective ways to restrict vehicle access. Further, he stated he had seen rutting in the grass abutting the Pathway despite the bollard.

[68]      Further, the placement of this bollard on the Pathway, at the curvature of the Pathway, is problematic. As he concluded:

Given the geometry of the curve, the downhill slope and the location of the bollard in the centre of the path, the bollard is difficult to see when single or multiple users are on the pathway concurrently.  This is particularly evident when walkers, cyclists or in-line skaters are ahead of a cyclist and they move or yield near the bollard.

[69]      In addition, as Mr. O’Connor noted, as one approaches the curve on the Pathway, the Pathway curves and descends and appears constricted or there appears to be a “pinch point,” as he described. He noted that the middle railing on the north side of the Pathway is placed near the edge of the asphalt path, presumably to prevent users from going down the bank to the river. However, there is no shoulder or clearance to the Pathway and the railing provides a visual and physical “pinch point” near the bollard.

[70]      In Mr. O’Connor’s opinion, little or no effort was made by the City to make the obstruction in the Pathway more visible. The paint on the bollard was almost non-existent.  There was no reflective material, no diamond warning paint or other devices used around the bollard and the location was poorly selected from a sight-line and location standpoint.

[71]      As outlined above, I find that the City acted with reckless disregard of the presence of cyclists such as Mr. Kennedy on the Pathway by placing a single bollard in an unusual – and thus unexpected – location on the Pathway without any warning devices and without taking steps to ensure the bollard was more visible.

The issue of contributory negligence – did any fault or negligence on the part of the plaintiff contribute to his damages?

[72]      The City has raised the defence of contributory negligence by its allegation that there was negligence on the part of Mr. Kennedy which caused or contributed to the damges he sustained.

[73]      Section 3 of the Negligence Act, R.S.O. 1990, c. N.1, provides as follows:

In any action for damages that is founded upon the fault or negligence of the   defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively.

[74]        Although I have found that the City acted with reckless disregard of cyclists such as Mr. Kennedy, I am also of the view that Mr. Kennedy failed to take reasonable care. At Mr. Kennedy’s speed of 10 – 12 km/hour the stopping sight distance would not be more than 14 feet. Even if the TAC Stopping Sight Distances are not strictly applicable because Mr. Kennedy was looking at the billboard to the south or the vegetation on either side of the Pathway, he nevertheless could have stopped or avoided the bollard.

[75]      As Mr. O’Connor indicated, whether one has time to stop or not depends on when one observes the obstacle. Mr. Kennedy did not see the bollard until shortly before he hit it.

[76]      Mr. Kennedy had ridden past the bollard on two occasions. One of those occasions was on his trip out to Meadow Lilly. The accident occurred on his way back from Meadow Lilly. Mr. O’Connor acknowledged that if a rider rode past the bollard, the rider should expect it riding back. I accept that proposition even though it was asserted on behalf of Mr. Kennedy that passing the bollard going the opposite way would not attract his attention the same way because of all the room on that side of the Pathway.

[77]      I am satisfied that Mr. Kennedy contributed to his own damages by failing to use reasonable care and take proper precautions for his own safety. I find that he was not paying sufficient attention as he rode along the Pathway. Had he been more attentive he could have avoided the accident by stopping, riding around the bollard on the right, or exiting the Pathway to the left where there was a lot of open space.

[78]      I apportion the City’s degree of fault at 40% and Mr.  Kennedy’s degree of fault at 60%.

Judgment

[79]      Mr. Kennedy shall have judgment against the City for 40% of his damages. If necessary counsel may make brief written submissions on costs within the next 30 days.

 

                                                                                       “Regional Senior Justice Lynne C. Leitch”

Regional Senior Justice Lynne C. Leitch

 

 

Released:               March 10, 2009.