The Ontario Court of Appeal has agreed with a trial judge’s ruling that found a town not liable for injuries suffered by a teenager who sustained a shock and subsequent injuries while playing soccer at an outdoor sports centre.
Zoe Onley (“Onley”), 18 years old at the time, and her parents sued the town under the Ontario Occupiers’ Liability Act and claimed for general damages, lost wages and loss of future earnings. The main issue at the trial was whether the town had met its standard of care.
On August 15, 2012, Zoe Onley was playing soccer at a sports field owned by the Town of Whitby (east of Toronto). The grass was wet at the time. During a break in the game, Onley left the field and sat down on some grass near a light pole. As she began to resume play she felt an electric shock. She later collapsed and was taken by ambulance to hospital.
As a result of the electric shock, Onley alleged that she suffered from physical pain in her legs, feet and muscle cramping, and also suffered from post-traumatic stress disorder.
Investigators removed an access metal plate near the base of the light pole in question and discovered damaged wiring. Expert evidence suggested that a bonding wire melted and separated, disconnecting it from the pole. This caused an electrical current to leak from the damaged, uninsulated wire to the surface of the pole, then down the pole into the ground. It was suggested that Onley provided a current between the lighting pole and the surrounding ground.
An electrical engineering expert testified on behalf of Onley and claimed that the wires and connectors in the electrical system could have been damaged due to the lack of the town’s effective maintenance and inspection program.
In the end, Justice Koke determined that the components had been damaged by an earlier lightning strike and that this damage was not overtly noticeable.
In his decision, Justice Koke wrote:
The damage was such that no short-circuit path had been created in the electronics of the luminaires. The current-carrying wires and fuses remained intact, allowing the luminaires to continue functioning normally when energized after the incident. Leakage current escaped from the damaged phase conductor, but the nature of the damage was such that it prevented the leakage current from being safely drained away by an intact bonding wire. Instead, the leakage current migrated down the pole and onto the ground.
Justice Koke decided it was not reasonably foreseeable that a lightning strike would damage wiring in the light pole without also affecting the normal functioning of the lights or causing circuit breakers to trip. He wrote in the reasons for his decision:
In my view damage of this nature, and the consequences flowing therefore, were not reasonably foreseeable and could not have been within the reasonable contemplation of the town. Although I find the risk of lightning striking an electrical pole is foreseeable, it was not reasonable foreseeable that such a strike would cause the damage at issue in this case, with the resulting injury to a user of the field.
With respect to Onley’s claim for damages, Justice Koke found that she had “achieved substantial recovery” and had been employed in various positions that require her to be an “able and mobile body” and that she has done well in overcoming her PTSD issues.
If the town had been found liable, the trial judge would have assessed Onley’s non-pecuniary damages in the sum of $85,000. Justice Koke would have dismissed her claim regarding a delay in her graduation from university, her claim for past income loss, her claim for the loss of an athletic scholarship and her claim for loss of future earnings. With respect to her claims for future care costs, he would have awarded her $50,000 for future therapy sessions and he would have awarded her parents $15,000 each for their Family Law claims.
Onley and her parents brought an appeal and submitted that the trial judge erred in his finding regarding the timing of the damage to the light standard and his findings in law with respect to his analysis of the foreseeability of the nature of the damage.
The appeal court reiterated the following three important parts of the Occupiers’ Liability Act:
- The Act imposes a duty on all occupiers 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”;
- The Act does not require a standard of perfection; and
- What constitutes reasonable care depends on the facts of each case.
The judges on the appeal panel agreed with the trial judge’s findings of fact and application of the standard of care analysis. Therefore, the appeal was dismissed.
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