Sword et al. v. City of Toronto et al.

(1976), 9 O.R. (2d) 215
ONTARIO\\ HIGH COURT OF JUSTICE
O'DRISCOLL J.
6TH MARCH 1975

Negligence — Occupier's liability — Child playing on city playground — Invitee — Eight-foot-high slide not embedded in concrete — Children placing teeter-totter board on rung of ladder of slide — Boy jumping up and down on end of board — Plaintiff sitting on board near fulcrum — Slide falling over and injuring plaintiff — City and boy both to blame.

[Veinot v. Kerr-Addison Mines Ltd. (1974), 51 D.L.R. (3d) 533, 3 N.R. 94; Pannett v. McGuinness & Co. Ltd., [1972] 3 W.L.R. 387, refd to] ACTION for damages for personal injuries.

Theodore H. Rachlin, for plaintiffs.

M.J. Winer, for defendant, City of Toronto.

Jesse T. Glass, for defendant, Roderick White.

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 slide and teeter-totters around which this lawsuit revolves are shown in exs. 1 and 2. The apparatus sat as portable or unaffixed pieces of equipment, not anchored or immobilized in concrete.

On the Saturday afternoon in question, the plaintiff, Miss Sword, then 13 years of age, born November 5, 1956, the defendant, White, then 15 years of age, born January 16, 1955, Timothy Ui, then 14 years of age, born March 21, 1956, and a Leslie McCreight, a boy of similar age, went to this playground some time after 2:00 p.m.

I find as a fact that Roderick White and Leslie McCreight carried the two teeter-totters over to the ladder of the slide and criss-crossed the ends of the teeter-totters in an "X" under one of the rungs of the ladder of the slide as shown in ex. 2.

White was present throughout the trial but elected not to give evidence himself and chose not to call any evidence.

Counsel for the plaintiffs read into the record these questions and answers from the examination for discovery of White taken in 1972 when he would have been 17 years of age: Q.7 And what is your birthdate?

A.January 16th, 1955.

Q.11 Do you recall the accident that occurred at the Earl Grey School on August 29th, 1970?

A.Yeh.

Q.12 And on that particular day, I understand that you were at the playground at the school, is that correct?

A.(Witness nods)

Q.25 Was the slide able to be moved? Do you know?

A.Yeh, it was.

Q.27 Had you ever moved the legs on the slide?

A.Yeh.

Q.28 When had you done that?

A.Umm -- a couple of weeks before that.

Q.36 All right, o.k. now which legs had you moved previously?

A.The two coming down from the platform.

Q.50 And did you move the teeter totters?

A.Yeh, we moved them over to the slide.

Q.51 Now who moved them, was it yourself?

A.Me and Les McCreight.

Q.90 Did Kathy say anything to you about your jumping at any time prior to the slide falling?

A.I think she said stop, she might get hurt herself.

Q.91 And how long would that have been before the slide fell?

A.I don't really know, like it was while I was jumping on it that she told me.

Q.92 Now was that while you were jumping on it the last time before the slide fell?

A.Yeh. Q.93 Now prior to the slide falling, did you have any knowledge that this slide was loose or shaky?

A.Well, it was a bit, like yeh, like it had been tipped over before.

Q.94 And you knew that at the time that you were on the teeter totter did you?

A.Yeh.

Q.95 Had you ever see it fall before?

A.Yeh, I seen a few guys push it over.

Q.101 Had you, yourself, placed the board under the rung of the step? Under the rung of the ladder?

A.Me and Leslie did it. Q.102 So you knew it was under the rung of the ladder when you were jumping on the teeter totter? A. Yeh.

Q.126 Now I don't want to cross-examine you, but you told me that the slide fell sideways and hit her, I am wondering how that could be if she was -- --

A.Like it was coming down. Coming down from -- it was the corner of the teeter totter, the corner was hooked in. Like it was sort of on an angle and the other board was on this so it was like this, the teeter totters.

Q.134 Now you told Mr. Malach that you saw the slide being knocked over by three boys about a week before?

A.Yeh.

Q.135 Was that the only time you'd seen it knocked over or had you seen it knocked over before?

A.I've seen it on the ground before but that's the only time that I'd seen it knocked over. 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. The slide which toppled is shown in exs. 1 and 2. These are photographs taken by Miss Sword's brother in her presence on August 31st after she had been released from the hospital. She testified that her older brother and younger brother lifted the slide up and placed the teeter-totter in position so the photographs could be taken as shown in exs. 1 and 2. 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.

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.

Comparatively, the defendant city has about 54 slides affixed in concrete and receives "a few calls" a season about these slides being dislodged. 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.

The instructions are set out in ex. 10. I will not read them into these reasons, but a perusal of them leaves no doubt that they are intended to have the owner dig holes, pour concrete and embed the slide at different points in the concrete.

Mr. Cornack agreed it was best to have the apparatus immobilized. He also admitted that he did not know that Paris Playground Equipment apparatus was not designed to sit on the surface of the ground. I took down his words when he said: "I did not know that none of their slides was designed to be portable." He also said: "I know that children move equipment if they can move it." And he said: "It is our responsibility to protect against children moving equipment and using it for a purpose other than intended." Mr. Cornack recalls no application to the board of education for permission to immobilize any apparatus on this playground.

Mr. Susko, supervisor of building maintenance for the Parks Department of the Borough of North York, was called as a witness for the plaintiffs. This borough has 120 playgrounds, and since 1955 all slides and teeter-totters have been affixed to the ground in concrete. Mr. Susko said they were placed in concrete as a safety factor because they then become safe to climb, there is no movement, and cannot be moved or toppled and will not slip.

Mr. Susko was shown exs. 1, 8 and 9 and said in his opinion the equipment shown in these photographs was not suitable to sit on top of an asphalt surface as it could be tipped and/or moved.

Mr. Richard Doyle, supervisor of parks for the Borough of Scarborough, said that borough has 120 playgrounds including those operated by the board of education in that borough. He said that in Scarborough all slides and teeter-totters have been embedded in concrete since 1945. Mr. Doyle said that in his opinion a parks department should be aware of the propensities of children to use equipment for a purpose other than the purpose for which it was designed. "We cement the slides ..." he said, "... to stabilize and immobilize them."

I now deal with the question of liability, if any, of the defendants. In the event that it is necessary for me to make a finding and categorize Miss Sword, I find that she was an invitee; she was entitled to be at that school playground, she was entitled to go in, she was entitled to use the equipment.

Is there any liability on the defendant city?
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.

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.

In my view, the slide and the teeter-totters in question in that school playground on August 29, 1970, were, so-to-speak, "accidents waiting to happen".

No attempt was made by the defendant city to stabilize the slide or teeter-totters by using railway ties or planks in order to cut down the possibilities of toppling; nothing was done in this regard. I realize that the factual situation was different and that the Court was dealing with the question of "trespassers", but it seems to me that if the passages are referable to trespassers then, a fortiori, they are applicable to invitees, and I refer to the Supreme Court of Canada decision in Veinot v. Kerr Addison Mines Ltd. (1974), 51 D.L.R. (3d) 533, 3 N.R. 94, which was pronounced on October 1, 1974, and in the judgment of Dickson, J., he refers to a case in the English Court of Appeal of Pannett v. McGuinness & Co. Ltd., [1972] 3 W.L.R. 387, and Dickson, J., says [at p. 551] :

The following excerpt from Lord Denning's judgment aptly expresses, in my opinion, the more salient points a Judge should have in mind when considering intrusions upon land [at pp. 390-1]:

The long and short of it is that you have to take into account all the circumstances of the case and see then whether the occupier ought to have done more than he did. (1) You must apply your common sense. You must take into account the gravity and likelihood of the probable injury. Ultra-hazardous activities require a man to be ultra-cautious in carrying them out. The more dangerous the activity, the more he should take steps to see that no one is injured by it. (2) You must take into account also the character of the intrusion by the trespasser. A wandering child or a straying adult stands in a different position from a poacher or a burglar. You may expect a child when you may not expect a burglar. (3) You must also have regard to the nature of the place where the trespass occurs. An electrified railway line or a warehouse being demolished may require more precautions to be taken than a private house. (4) You must also take into account the knowledge which the defendant has, or ought to have, of the likelihood of trespassers being present. The more likely they are, the more precautions may have to be taken.

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 which we have in evidence as exs. 25 to 30 inclusive.

Dealing with the defendant White, I have already read into these reasons Qq. 93-5 and Qq. 134-5. At the time of the accident, White was 14 years of age. He knew or should have known that his actions would likely cause the slide to topple, and that the plaintiff, Miss Sword, was close by and obviously would have been in the path of the toppling slide. I find that White was negligent in jumping on the end of that board when he knew how the two teeter-totters were situated vis-a-vis the slide ladder and knowing that Miss Sword was seated as she was. I find that it was negligence on his part to jump up and down as he did on the teeter-totter, on one part of the apparatus, and he knew this because he had helped to construct this apparatus that afternoon.

Was there any negligence on the part of Miss Sword? Counsel on behalf of the defendant White, has urged upon me the defence of volenti non fit injuria.

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. In my view, the injuries suffered by the plaintiff resulted from the combined negligence of the two defendants and I assess the percentage of negligence as follows:
The defendant city 80%
The defendant White 20%

Damages The out-of-pocket damages have been agreed upon by counsel as shown in ex. 20, and I assess same at $4,169.52, special damages. After the accident, Miss Sword went to the Toronto East General Hospital and she was there for two days. She had a laceration from the vertex of her head to the left eyelid requiring over 100 stitches. Her injury at that time is vividly shown in exs. 3 and 4 which are photographs taken by her brother on August 31, 1970. Exhibit 12 is a report from Dr. Parsons, the assistant resident on plastic surgery of the Toronto East General Hospital, and it reads in part:

Physical examination revealed a 13 year old girl with a long, vertical laceration stretching from the medial corner of the left eye to the vertex of the skull with some contusion in the mid-forehead region.

This was sutured in the Emergency Department under local anesthesia using subcutaneous plain gut suture ...

The report of Dr. Freiberg is filed as ex. 15, and he says:

I saw her for the first time on August 29, 1970 when she was admitted to the Toronto East General Hospital following a repair of her lacerations in the emergency department.

On July 31st, 1972 a minor scar revision was carried out in the eyebrow area primarily to realign the eyebrow. She healed well post-operatively and was seen on August 2nd and 4th.

Examination today ... [That is November 7, 1972] ... shows that she has a vertical scar on the left side of the forehead 6.0 cms in length, the scar across the forehead is quite flat and well healed and is visible at approximately four feet. The scar then goes across the eyebrow where the recent operation was performed, the alignment is quite satisfactory, The scar then extends into the upper eyelid where it spreads and causes a certain fulness in the medial canthal area.

She has another oblique scar across the eyebrow 2.0 cms in length which shows slight separation of eyebrow hair but is cosmetically quite acceptable and could be covered with cosmetics.

The basic deformity in this girl's face is mainly contributed by two factors, one is slight fulness of the eyelid in the medial portion, the second is the prominent epicanthal fold where the previous ophthalmological procedures have been performed.

I am not too sure if anything further could be done to improve the appearance in this latter area, but I do think that a simple excision of excess skin in the medial canthus of the upper eyelid would improve the overall appearance.

Miss Sword appears to me basically as she appears in the colour photographs taken of her and filed in this trial as exs. 5, 6 and 7 which were taken in 1972. As I understand the evidence, her appearance has not essentially changed since that time. Miss Sword was seen by an ophthalmologist, Dr. Dobbin. His reports are filed as exs. 13 and 14.

Dr. Dobbin says in ex. 13:

On examination, her vision was normal in both eyes. External examination of the left eye showed a scar running from the medial aspect of the left upper and lower lids, vertically through the medial aspect of the eyebrow, almost to the hairline. The opening of the upper tear duct (punctum) was slightly twisted, but open. The lower punctum was also open and no pus could be expressed. Probing of the canaliculi showed complete obstruction of both of them.

The doctor then speaks about talking to the parents, and he says:

The plastic tube was inserted on July 22nd, and removed on August 31st. It is too early to assess whether the tear duct will remain open, but the tear duct did irrigate easily on August 31st. There is another report from Dr. Dobbin on April 21, 1972, in which he says:

When I saw her again in November, she said that the eye had not watered for two to three days after the tube had been removed. Since then, she said it had started to water again but was not as bad as the watering preoperatively had been.

An attempt was made to irrigate the tear duct again but this was unsuccessful. An attempt was also made to see if a probe could be passed down the tear duct and this too was unsuccessful. Miss Sword then at this point was referred to Dr. Joseph C. Hill. Dr. Hill's reports are filed as exs. 16 and 17, and he was good enough to draw for us at the trial ex. 19 which shows the anatomy of the eye at the particular point in question and the operation which he performed.

Dr. Hill says in ex. 16:

I suggested to the family to cut down on the scar of both the upper and the lower canaliculus and try and turn the proximal end and anatomse [sic] it to the conjunctiva. This is not too difficult an operation and gives a moderate degree of success. I am unable to ascertain whether this is practical until I try it in the operating room.

If it turns out the above procedure is not feasible, I would recommend inserting a Jones pyrex tube and performing a conjunctivo-rhinostomy.

That was done as shown to us in ex. 17.

This was done on March 14, 1972, under general anaesthesia at the Toronto General Hospital.

It was found that the left upper canaliculus was obstructed 7 mm. from the punctum and the lower 6 mm. in from the punctum. It was surgically found impossible to identify the proximal end of the upper and lower canaliculi. It was then decided to perform a conjunctivo-rhinostomy with insertion of a Jones Pyrex tube between the conjunctival sac and the nose. This was performed satisfactorily. This functioned well at the time of discharge on the 24th of March, 1972. Subsequently, the glass pyrex tube migrated and became non-functioning. She was again admitted to the Toronto General Hospital and a revision was carried out on April 19, 1972.

The tube worked fine but eventually became occluded. A second revision operation was performed on the 2nd of May, 1972, and has remained opened and functioning well as of the 25th of May, 1972. The tube requires washing out by an ophthalmologist three or four times per year.

What then are the present complaints of this young lady? She has the scars, of which I have read in the medical reports, and which are obvious in the photographs, exs. 5, 6 and 7. She has the numbness on the left side of the forehead. She says: "It stings from the rain."

The tear duct is damaged in the left eye, and I have already referred to the "Jones Pyrex Tube" which was inserted, and a similar one has been filed here during the course of the trial. The reason for its insertion is because the drainage system from the tear duct was lacerated, and without this medical procedure the tears would flow down the cheek rather than being disposed of in the normal way. When one looks at the plaintiff and looks at the photographs, one can see the facial or eye symmetry has been disturbed. It is not 100%. We have heard evidence from her about the taunts of children in school as she was reaching her majority.

Miss Sword impressed me as a bright, personable, pretty, articulate, 18-year-old young lady who has equivalent education of grade 13 and hopes to enter university in the fall of 1975. Miss Sword will carry the scar with her for the rest of her life. She will carry the Jones pyrex tube or a replacement, such as has been filed as ex. 18, as long as she lives. The tube will require the irrigation spoken about by Dr. Hill, and she has the usual problems with regard to infection going from the nose over the eye.

Miss Sword was asked by her counsel, if given the choice, which would she get rid of, the tube or the scar, and she said: "I would like to get rid of the scar."

I asked counsel for all the parties before me if they would be good enough to give me a range of general damages. The range went from a low of $15,000 to a high of $30,000 more or less.

In view of the injuries suffered, and the fact that a pretty young lady has a scar on her face and her facial symmetry has been disturbed, and in regard to the tear duct problem, the pain and suffering which she has endured and which the pictures taken of her two days after the injury show she must have endured, the loss of enjoyment of life, the fact she will be limited with regard to strenuous activities, the fact she will have to have this irrigated as long as it is inside of her nose and lower eye, possibilities of infection, possibilities and probabilities of a "red-head", which she has the strain of a red-head, of developing allergies; taking a global view of all these things, I assess her general damages at $26,000.

Albert Sword will have judgment against the defendants in the amount of $4,169.52.

Kathryn Mae Sword will have judgment against the defendants in the sum of $26,000.

Plaintiffs to have one set of taxed party-party costs.

I have endorsed the record as follows:

Kathryn Sword is now an adult.

For oral reasons given in open Court this date, Albert Sword is to have judgment vs the Defendants in the sum of $4,169.52, and Kathryn Sword to have judgment vs. the Defendants in the sum of $26,000.00.

I assess liability:

Defendant City -- 80% Defendant White -- 20%

Plaintiffs to have one set of taxed party-party costs payable by the Defendants, and the Plaintiffs shall be entitled to add to said taxed costs all costs they are liable to pay to the Official Guardian under the order of S.M. McBride, Q.C., Master, dated December 4, 1974, and costs of adding Official Guardian under Order of January 27, 1972.

Judgment accordingly.

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