Sword et al, descriptive excerpts from Justice J.O'Driscoll's summary remarks

Sword et al. v. City of Toronto et al. (1976), 9 O.R. (2d) 215\\ O'DRISCOLL, J. (orally):— During the summer of 1970 and for several years prior thereto, the defendant city, through its Department of Parks and Recreation, operated a playground in the school yard of the Earl Grey School. This was accomplished through permission granted by the Toronto Board of Education, and the city giving to the school board what Mr. Cornack said was a "save harmless covenant" in the agreement.

It is agreed and admitted by counsel for the city that at all relevant times under consideration in this action, the playground in question was occupied, operated, maintained, managed and controlled exclusively by the defendant city.

The day in question was Saturday, August 29, 1970. The evidence is that the city provided playground supervisors from Monday to Friday during each week of the summer schedule which ended on Friday, August 28, 1970.

On the day in question, the equipment was still in the school yard playground and scheduled to be picked up by employees of the defendant city before the school term resumed in early September, 1970.

The playground was asphalt-surfaced. It had a swing and a wooden slide with approximately an eight-foot ladder. The playground also had two teeter-totters which were each approximately 12 ft. long and composed of a two-inch thick plank.

The apparatus sat as portable or unaffixed pieces of equipment, not anchored or immobilized in concrete…. I find that Miss Sword was sitting "side-saddle" on the teeter-totter about three feet from the fulcrum on the side furthest away from the ladder.

I find that she was sitting on the teeter-totter other than the one upon which White was jumping up and down in the manner that a diver jumps up and down on the end of a diving board.

I find that Miss Sword noticed that the slide was wavering and said: "Stop jumping or someone is going to get hurt."

I find that White kept on jumping and jumped off the teeter-totter board and the slide thereupon fell and drove Miss Sword's head into the teeter-totter board causing the injuries I will hereinafter discuss… Mr. John Swan, from the Department of Projects and Budgets of the defendant city, testified that in 1969 the city had about 18 of the eight-foot high wooden slides, one of which is in question here, and as of February, 1975, still had about four left which it proposed to use in the summer of 1975. Over the years, apparently, the wooden slides have been phased out and replaced with all steel slides.

Various weights were given by different witnesses, but I think it is a fair average that the eight-foot wooden slide here in question weighed between 350 and 375 lbs.

Throughout the trial, all personnel of the defendant city referred to the equipment at Earl Grey School as "portable", which Mr. Swan defined as "not anchored, not a permanent structure". Mr. Swan said that the board of education and the Department of Recreation agreed that the slides and teeter-totters will not be attached or embedded in any way… On the evidence before me, I could not and would not find that Miss Sword knowingly assumed the risk of having her head split open, by the combined negligence of the city and White, by sitting side-saddle on that teeter-totter, sitting there drinking pop and talking, even though she may have been guilty of attempting to carve her initials into the teeter-totter board.

What about contributory negligence on the part of Miss Sword? It was argued that Miss Sword was seated there, that she sensed the danger but did not get up and run away, and that in itself constitutes contributory negligence.

Miss Sword was sitting on the board, White jumped up and down, she told him to stop.

In my view, she was entitled to assume that he would heed her warning and desist. I do not think she had any obligation to bolt from her sitting position and retreat from the scene…. Mr. Swan on his cross-examination said that the defendant city received about four calls a summer regarding toppled slides, and had in operation at the time of this accident more or less 18 of these portable slides. Mr. Swan said the portable slides cannot be blown over and cannot be knocked over unless abused; in his words: "It would have to be toppled." Mr. Frank Cornack, assistant director of recreation for the City of Toronto, said that the city during the summer operated more than 50 playgrounds in school yards and all of the equipment installed in these school playgrounds was portable.

Mr. Meggs of the Paris Playground Equipment Limited, a large manufacturer of playground equipment and a supplier to the defendant city, said, during the course of his evidence: "I have never known eight foot slides to be left free-standing."

Mr. Meggs produced ex. 10, which is the assembly instructions for the slides of Paris Playground Equipment Limited, and said that all the company's slides are designed to be anchored in concrete, and he said if they are not anchored in concrete it would become necessary to cut off a piece of each ladder leg to balance the slide on the ground… I find that the defendant city, on the basis of the facts as I have found them, was negligent in erecting a 350-375-lb. eight-foot high portable slide. In my view, the initial negligence was aggravated by the fact that it was plunked atop an asphalt surface and left unattended in a playground situated in an elementary school yard.

I appreciate that the parks department of the defendant city has been beseeched by ratepayers' organizations and local area groups to provide playground facilities to city core children during the summer. I appreciate that the parks department of the city may well have been caught, so-to-speak, between the "devil and the deep blue sea" when the board of education refused to grant permission to immobilize the apparatus… [But] In my view, the defendant city had a duty to take the same position as the Parks Departments of North York and Scarborough, namely, refuse to install the apparatus unless they were permitted to immobilize and stabilize it in concrete.

… It appears to me that over the years the defendant city may well have been fortunate that what we have in this case has not repeated itself. On the evidence, this appears to be the first reported injury occasioned by a falling slide. I think it is significant, however, that when Mr. Halley, a claims investigator for the defendant city, attended at this same playground on August 18, 1972, to take photographs, this is at a time when the playground season was still current and not after the playground was closed, he found the slide broken and on its side, and he had to right the slide (he said he did it himself), and then take the photographs…

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