It was only an inch difference, but that was enough for an Ontario court that awarded sizable settlement to a woman who tripped and fell on a municipal sidewalk.
An Ontario court recently awarded $107,765 to a woman who broke her upper arm at the rotator cuff after stubbing her toe, tripping and falling on a Caledonia sidewalk.
In a decision released January 17, the Ontario Superior Court of Justice found the combined total of general damages, future care costs and loss of income was $215,530 for Glenda Grayling. She had sued the City of Haldimand after falling on November 25, 2009 in the community of Caledonia, about 25 kilometres from Hamilton.
“In all likelihood the trip ledge which caused Mrs. Grayling's fall was between three-quarters of an inch to one and one quarter inches," concluded Justice Thomas Lofchik in his ruling. “There was a state of disrepair of the sidewalk. Although there was an inspection system, there was no evidence about the degree of measurement of areas of concern or if an area of concern less than one inch was spotted. There is no evidence of repair.”
(Look for tomorrow's Expert Advice for some timely advice on how to educate your client on slip and fall hazards)
The liability – although split 50/50 between the city and Grayling – basically came down to a difference in height between two slabs of sidewalk.
According to the court ruling, “stubbing her toe caused (her) to take four or five quick steps forward and fall onto her right arm onto the grass next to the sidewalk… she stubbed her toe due to a difference in the height between two slabs of the sidewalk.” (continued.)
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As a result of the split in liability, Grayling was actually awarded $107,765. Of the total award, $75,735.00 ($4,936 per year) was for housekeeping up to age 70 while $50,114.18 ($2,834 per year) was for gardening, window cleaning and curtain washing up to age 70.
“The current state of her injury appears to be more or less permanent, as are the significant discomfort and disabilities which the injury causes,” Justice Lofchik wrote. “Mrs. Grayling continues to lack strength and endurance in the use of her right dominant arm. Physically she cannot apply pressure through her right arm, lift or carry heavier items or complete repetitive arm movements against resistance or sustain her arm overhead for periods of time. These physical limitations impact her ability to contribute to homemaking, housekeeping and outdoor maintenance tasks. Mrs. Grayling is not able to maintain both work and household responsibilities due to her arm/shoulder strain and fatigue.”
The court also awarded $16,697.24 for physio assessment and physiotherapy up to age 70. The court awarded loss of income to date of $9,000 and loss of future income, to age 65, of $12,000.
The judge did admit that pedestrians should not expect sidewalks to be perfect.
“It must be noted that sidewalk installation is not an exact science,” Justice Lofchik wrote. “Sidewalk slabs are rarely perfectly smooth, as pedestrians need a surface upon which traction is readily available. There is a sense that pedestrians should not be expecting a perfectly flat surface any more than if they were walking elsewhere and so consequently, it is not every accident that speaks of a non-repair.”
