While in a perfect world all risks could be avoided, in the actual world we live in, life comes with risks that may be unavoidable, obvious, or both, Ontario’s highest court has unanimously ruled. It declined to assign liability to the town of Cayuga over a 2001 incident in which a teenager climbed a popular climbing tree in a public park, fell off, and was rendered a paraplegic. He sued, saying the town should have taken measures such as prohibiting climbing or warning of danger.
“Trees, being by their very nature things which can be climbed and therefore fallen from, are potentially harmful,” the court said. “Any danger posed by this tree was an obvious one. If you chose to climb it, you could fall and be injured.”
A lower court judge dismissing the suit in 2013 declined to create a municipal duty to prevent injuries by developing and enforcing a ban on tree climbing in the park. “There has to be a reasonable limit to such prohibitions on human activity,” he said. [Toronto Star; note the pioneering 2003 English case Tomlinson v. Congleton Borough Council discussed here and here]
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Just a comment about the definition of “risk” vs “hazard”. Hazards are things or events that can cause injury or damage. Risk is a measure of the probability that a hazard will actually cause the injury or damage.
Almost all moving objects are hazards, because they have the potential to cause damage or injury, if something gets into their way. The risk associated with the object is the chance that something/someone will actually get in its way and be injured/damaged.
I would be very difficult to live in a world with no risk, because it would require, at a minimum, the removal of all moving objects (including even, large people who are hazards to small children, or mothers who roll over in their sleep) that could cause harm. We generally accept those hazards and the risk associated with them.
One of the difficulties that societies face these days is that when an obvious hazard has not been avoided, some people insist on being compensated for their lack of foresight. This gives us some measure of the actual risk, and the legal system then has the task of determining whether that risk is acceptable.
I strongly approve of the Canadian court’s stand, a refreshing contrast to the current US War on Sledding.
Nevertheless, the court’s ruling was doubtless made easier by their awareness of Canada’s universal health insurance. The kid’s medical care was being provided in any case, and his family simply wanted more money. In contrast, US judges and juries have seen expansive, even fanciful liability claims as an (extremely capricious and wasteful) backstop for national health insurance.
Obamacare is an inferior substitute, designed to fatten every interest group in sight while still leaving many at ruinous financial risk. He would have done better to leave the satisfactory parts of our insurance system in place while creating a robust Federal Medicaid program to fill the gaps between private insurance and differing State Medicaid programs.
Whew! Glad they ruled that way. The Enviro lobby would have gone absolutely ape if the town lost and took the logical step of cutting down all trees.
Then the Province would have had to do the same, out of fear of liability, and clear cut the entire province. Then the remainder of Canada would have been clear cut, all “for the children”, so they don’t fall out of trees.
And then since all the stumps would be trip hazards, they would have been bulldozed up and the ground smoothed.
And since rock faces are the next obvious thing that kids will climb, what with the trees gone they’d be doubly tempting with the increased visibility AND lack of trees (and gasp, some might even climb them without ropes), the Canadian Military would have needed to get to work with their high explosives and demolish every cliff face that can potentially be climbed or fallen off of – a 20 degree angle ought to be shallow enough to prevent serious injury should someone roll down the hill.
Yep…..those pesky trees. The most Evil thing in creation.
😉
The Court of Appeal’s decision, Winters v. Haldimand (County), 2015 ONCA 98, can be found here: http://canlii.ca/t/gg83n.
The trial decision, Eric Winters and The Corporation of Haldimand County, 2013 ONSC 4096, can be found here: http://canlii.ca/t/fz78k.