Woman’s Injury is $105,000 but Case Lost on Liability > Plaintiff Must Pay $13,000 in Legal Costs to Defendant

Absence of Maintenance Records to Prove Snow and Ice Removal > Defendant Still Successful in Lawsuit

Case Comment – Coulson v. Hamilton (City), (2008 Ontario Superior Court of Justice)

The 68 year old female plaintiff slipped in February, 2003 on what she said was black ice, suffering injury.  At Trial only liability was argued, as damages were agreed upon by the parties to be $105,000.  The action was started against the City of Hamilton and the property owner fronting the subject sidewalk; the action was dismissed against the City prior to the Trial and the Trial was against the property owner only.

She lost at Trial and the decision on costs has now been released. She is currently 73 years old and has just been ordered to pay $13,000 in legal costs to the defendant – Coulson v. Hamilton (City), 2009 CanLII 5149 (ON S.C.)

The plaintiff’s main witness was found to not be credible.  She witnessed the slip and fall but was found to be evasive and less than forthright on a number of issues.

The plaintiff herself was found credible but her lacking in her memory of the specifics of the accident.  The representative of the defendant company, despite an absence of maintenance records indicating that cleaning of snow/ice was done that day, was found to be credible and it was accepted by the Court that there was a regular system of cleaning of the sidewalk that was adhered to.

Mr. Justice Glithero found that the defendant property owner was not an ‘occupier’ of the sidewalk pursuant to theOccupier’s Liability Act.  In the alternative, it was further found that the defendant did not breach their duty of care to the plaintiff.  Finally, the Court found the plaintiff to bear 50% contributory negligence for the slip and fall.  Contributory negligence means the portion of responsibility, for the accident, attributable to the plaintiff – see Negligence Act.

This case is of interest to lawyers practicing personal injury law.
Gregory Chang
Toronto Insurance Litigation Lawyer