Hurt Tobaggoning in Hamilton: $580,000 for Spinal Cord Injury

A family of four went tobaggoning on a reservoir property owned by the City of Hamilton, in an area where tobogganing was expressly prohibited (but this was not known by the family). After their two children went down the hill, the plaintiff father went down, hit a ridge and overturned, and badly injured himself, including a crushed L1 vertebrae, chronic pain and depression. The mother and father eventually ended their 19 year marriage alleging that the father’s changed personality after this accident was the main reason.

The dispute went to an Arbitrator and then the City appealed to the Ontario Superior Court of Justice: Uggenti v. Hamilton (City), 2013 ONSC 7990 (CanLII).

On appeal, all the heads of appeal by the City were dismissed. The various aspects of the liability determination, as well as appealing the damages assessment for Family Law Act claims by the spouse, generally arising from the plaintiff’s spinal cord injury, were appealed by the City of Hamilton.

The specific property was not found to be a utility right of way, which would have prohibited recovery by the plaintiffs (which is of interest to personal injury practitioners). In particular, sections 3 and 4 of the Occupiers’ Liability Act are reviewed in detail in the context of this municipal property injury.

The Court also dismissed the volenti non fit injuria (willing assumption of risk) and contributory negligence arguments on appeal.

In the related decision on the issue of costs, Mr. Justice Lococo ordered that the defendants pay to the plaintiff $30,000 of costs/disbursements/tax, as a result of this unsuccessful appeal. The plaintiffs had sought over $60,000 of time, which appears to have included the hearing at the Ontario Court of Appeal initially over whether the City of Hamilton should have the time extended for the filing of their appeal.

Gregory Chang

Toronto Personal Injury and Insurance Lawyer