Comment 107774

By KevinLove (registered) | Posted January 11, 2015 at 03:12:41 in reply to Comment 107686

Charles wrote:

"Further, the plaintiff's damages were reduced by his own responsibility for the damages he suffered."

Kevin's comment:

Not according to the judge. See below for an extract from the link posted in the article.

It is certainly true that they should have been reduced (to zero!) by the man's recklessness and negligence in failing to check out the ground over which he intended to toboggan. This ditch was not a "hidden danger" but is open and obvious to anyone who walks over this ground, which is the action of a reasonable and prudent man before tobogganing upon it.

This man even had a previous tobogganing injury! Some people never learn. And they never will if they are rewarded with $900,000.

An excerpt from the above link:

IV. Contributory negligence

[25] Did the Arbitrator err in law in finding no contributory negligence by of the Plaintiffs?

[26] In Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd.,[10] the Supreme Court of Canada adopted the following test for contributory negligence:

A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might hurt himself; and in his reckonings he must take into account the possibility of others being careless.[11]

[27] The City argued that the Arbitrator erred in law in finding no contributory negligence on the part of the Plaintiffs, in that he failed to apply an objective test in determining whether there was contributory negligence by the Plaintiffs. In this regard, the City cited passages from the Arbitrator’s decision in which he determined that the Plaintiffs saw or may have seen a depression or divot in the snow that they determined on a subjective basis did not pose a danger. In the City’s submission, the Arbitrator was required but failed to consider whether the reasonable, prudent person, knowing that there was a depression or divot, would have foreseen that the depression might cause an injury while tobogganing, or that tobogganing itself might cause injury.

[28] After considering the City’s submissions, I have concluded that the City’s appeal cannot succeed on this ground. While the Arbitrator did not expressly set out the well-known test for determining whether someone is contributory negligent, there is nothing in his decision to suggest he applied the wrong test. In my view, it was appropriate for him to consider the evidence he did in order to reach the conclusion that there was no contributory negligence by the Plaintiffs. In doing so, he was determining a question of mixed fact and law, which is not reviewable on this appeal.

Comment edited by KevinLove on 2015-01-11 03:17:11

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