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Battle of the Experts and What Is Reasonable Under the Occupiers’ Liability Act

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Excited for the start of the year and this new decade. I thought I would start this update with a recent trial decision regarding an injury received as a result of an electrical shock.  Was it just an accident or could this incident have been prevented?

In Onley v. Town of Whitby, a 2020 decision, during a soccer game, the Plaintiff felt an electrical shock, in close proximity to a light pole.  Other players in the area received minor shocks.  However, the Plaintiff collapsed on the field.  She brought an action against the Town of Whitby alleging that the Town did not take reasonable steps to inspect and maintain the lights on the field and failed to comply with the Occupiers’ Liability Act.  The Plaintiff’s parents brought FLA claims.

The parties agreed that the shock the Plaintiff received was caused by a leakage of current from the light pole beside where she sat, onto the ground.

The two issues that were raised, were as follows:

  1. Liability: Did the Town of Whitby fail to take reasonable care in the circumstances of the case to ensure that the Plaintiff was safe while on the premises, and, thereby, breach its duty under the Occupiers’ Liability Act, S.O. 1990, c.O.2 (OLA)?
  2. Damages: If the Town of Whitby breached its duty of care, did this breach cause damages to the Plaintiff and her parents, and how should such damages be assessed?

In terms of liability, multiple experts were called.  The Plaintiff’s expert even referenced the fact that the City of Toronto, as a result of injuries due to stray voltage in streetlighting handwells, engaged in the Handwell Replacement Project.  The Defendant’s experts stated that the probable cause of the internal damage to the pole was lightning.  However, the Plaintiff’s expert stated that there had been a degradation of the electrical components and that the Town of Whitby should have engaged in a project akin to the Handwell Replacement Project.  However, there was no evidence to support this degradation theory.  Accordingly, the judge stated that the probable cause of the electrical failure was a lightning strike occurring in the Spring of 2012 and before the date of the incident.

In determining whether the standard of care had been met pursuant to the OLA, reliance was placed on the Supreme Court of Canada’s findings in Ryan v. Victoria (City), and the following questions were asked:

  1. the likelihood of a known or foreseeable harm,
  2. the gravity of that harm,
  3. the burden or cost which would be incurred to prevent the injury, and, in addition, consideration of
  4. external factors, i.e. custom, industry practice, regulatory standards.

The Judge concluded:

…although I find that the risk of lightning striking an electrical pole is foreseeable, it was not reasonably foreseeable that such a strike would cause the damage at issue in this case, with the resulting injury to a user of the field.  In almost all circumstances apart from the ‘rather unique case’ at bar, the operation of the pole would have been notably compromised, the breakers tripped, or the lights flickering or not working at all, and any stray current would have been carried away by an intact bonding wire.

Accordingly, I find that the circumstances here were such that the risk of harm to persons was objectively unreasonable.

In the analysis of the maintenance measures in place, it was found that the Town of Whitby had effective measures in place:

  • The evidence was that the Town entered into an agreement with the ESA which provided for comprehensive annual inspections of its park lights.  The ESA agreed that the Town had complied with the terms of this agreement.
  • The evidence was also that the Town’s park light installations complied with the Electrical Code and that the Town’s inspection and maintenance protocols were designed to protect users of its sports fields from injuries caused by foreseeable risks.
  • The OLA requires the Town as occupier to take reasonable steps to ensure the safety of the users of the Sports Centre fields. I have found that the nature and type of damage was such that it was not reasonably foreseeable by the Town. I am satisfied in the circumstances of the case that the Town took the necessary reasonable steps in relation to any foreseeable electrical mishaps.
  • Accordingly, I find that the Town of Whitby is not liable for the injuries…..

Accordingly, although the Plaintiff has had difficulties as a result of this accident, which has resulted in PTSD because there was no liability, the Plaintiff was not awarded any damages.

The Plaintiff’s accident, was unfortunate, but was ultimately found to be just that – an accident.  The Town of Whitby was able to demonstrate that this accident was not foreseeable and that it had met its standards under the OLA.

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