Oakville Lawyers $75,000 awarded to Plaintiff for Broken Leg
A Oakville Court awarded a plaintiff, Ms. Elizabeth Ann Riehl $75,000.00, amongst other damages, for a broken tibial plateau and loosened front teeth. The tibial plateau, or the actual diagnosis of an undisplaced fracture of the medial tibial plateau which, in common parlance, is a crack in the head of the tibia extending into the knee joint. (**Picture not actual site of occurrence)
Elizabeth was 41 years old at the time of her trip and fall. She lived with her husband and son on Main Street West in Oakville. On June 19, 2007 she was scheduled to start work at 6:00 a.m. She left her apartment at 5:45 a.m. She was walking north along the centre of the sidewalk on the west side of Main Street West, heading for the bus stop at Osler Drive. The weather was clear and mild, she was wearing sensible walking shoes, carrying a backpack with library books in it, and a purse which did not affect her balance or the way she fell. There were no witnesses to the accident.
Elizabeth tripped over an elevated crack in the sidewalk, which unfortunately neither she nor the adjuster measured. No one knew the actual precise height of the crack by the time the case got to court.
The plaintiff attended the hospital and was discharged with a leg cast from her groin to her ankle.
She and a friend took pictures of the area in which she fell and provided them to the Risk Management Department at the City of Oakville.
The City then referred the matter to independent claims adjuster Robert Phipps.
The Oakville Court’s decision
In these types of cases, against the municipality, the onus is on you, the plaintiff, to prove on a balance of probabilities, the state of disrepair of a roadway. The plaintiff, you, is also required to prove on a balance of probabilities, that the non-repair of the road way was the cause of the accident in question. Once these requirements are met, the onus then shifts to the municipality to prove, on a balance of probabilities, that the condition that the non-repair existed notwithstanding all reasonable efforts on the part of the municipality.
The questions posed to the Court were the following:
- Did a state of disrepair exist?
- Was this state of disrepair the cause of the plaintiff’s injuries?
- Has the defendant met the onus of proving a defence under section 44(3) of the municipal Act?
- What are the damages?
With respect to the first question, the Court found that neither party took measurements of the height differences between the two sides of the crack. There were photos taken that were in existence.
Have you tripped over a broken sidewalk? Please contact one of our lawyers for more information. You may be entitled to compensation.
A project manager from Oakville’s Public Works Department was involved in analyzing information and developing work plans to invest efficiencies and, in particular, trip hazards on municipal sidewalks. There was testimony which indicated that a grinding machine was used by the City of Oakville to smooth out trip hazards. This grinder could be effectively used to chip of the surfaces to correct discrepancies of up to 25mm (about an inch) to eliminate tripping hazards. That project manager than testified that the defects of 25mm or more are placed on a asphalt sheeting list. Temporary asphalt patch would then be placed to alleviate the vertical separation by creating a ramp and making the defect safe.
The judge found that the photographs taken show that the asphalt patch was either old or disintegrating and it was never properly applied because it did not reach the margin on the height side of the cracks. Essentially the Judge found that the plaintiff met the onus of proving on a balance of probabilities that the sidewalk was in a state of disrepair.
With respect to question 2, or whether or not the state of repair caused the plaintiff’s injuries, the Judge found that it was not disputed that the fracture of the tibial plateau and loosening of her front teeth were caused by the trip and fall on the sidewalk. However, he found that she contributed to her injuries at the rate of 25%.
With respect to question 3, or has the defendant met the onus of proving a defence under section 44(3) of the Municipal Act (the city argued that it took reasonable steps to prevent the default from arising). The Judge found that the defendant knew the area was in a state of disrepair. It had attempted an asphalt patch for the crack, which caused the plaintiff’s fall. It had replaced part of the sidewalk a short distance south of the spot where she had her accident. It had been involved in infrastructure work at the intersection of Main Street West and Osler Drive in Oakville shortly before her accident. The Judge found that, in his view, The City of Oakville failed to establish that defence on a balance of probabilities. The sidewalk in question is a high pedestrian traffic area, a fact acknowledged by the project manager for The City of Oakville. The intensity of the pedestrian traffic was a factor, in the Judge’s view, in assessing the adequacy of the defendant’s response in dealing with the defects and trip hazards.
The plaintiff suffered a fracture of the tibial plateau of the left knee extending into the knee joint. An orthopedic surgeon testified on behalf of the plaintiff and found that she had pre-existing osteoarthritis in both knees and opined that the accident probably accelerated her osteoarthritis by five to ten years. She would likely require surgical management in the form of a knee replacement within approximately fifteen to twenty years from the date of the injury. She would perhaps require one or two knee replacements in her lifetime. The plaintiff was in a full cast from groin to ankle initially and then received a removable splint afterwards. The first six weeks of her post-accident was non-weight bearing followed by six weeks of progressive weight bearing. The Judge assessed her compensation for pain and suffering at $75,000.00. The Judge also awarded the plaintiff $5,324.00 for past loss of income. The Judge did not award anything for future housekeeping given that there was no functional capacities evaluation performed. The judge set aside $30,000.00 for future loss of income, which would be approximately one year of the plaintiff’s wages.
These were all subject to 25% discount given the contribution to her injuries.
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