IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100219

Docket:
09-3711

Registry: Victoria

Between:

Kathleen
M. Sullivan

Plaintiff

And:

City of
Victoria

Defendant

Before: The Honourable Mr. Justice Macaulay

Reasons for Judgment

[1]            
On July 7, 2009, the plaintiff, Ms. Sullivan, who is a slight elderly
woman, tripped on the exposed edge of a section of sidewalk in James Bay,
Victoria, and fell. She suffered minor injuries from which she recovered within
a week or so. Ms. Sullivan claims damages for pain and suffering against
the defendant, City of Victoria (the “City”).

[2]            
Ms. Sullivan is self-represented. Her pleadings do not set out the usual
allegations of negligence, namely, that the City owed her, as a pedestrian on a
city sidewalk, a duty of care that it breached by failing to adequately
maintain the sidewalk. A generous reading of the statement of claim would
permit such amendments as an alternative to striking out the claim in its
entirety.

[3]            
The City did not apply to strike out the claim. Instead, the City
responds in its statement of defence, for the most part, as though Ms. Sullivan
properly alleged negligence. I will summarize the more important defence
pleadings below.

[4]            
Apart from denying that Ms. Sullivan fell or sustained any injury or damage,
the City pleads that it created a sidewalk inspection and maintenance policy in
good faith and that its policy decision is not reviewable by the court.
Alternatively, the City says that the policy was reasonable in the
circumstances. The City further says that it did not owe Ms. Sullivan a duty of
care because all of the decisions leading up to the accident were policy rather
than operational decisions. In the further alternative, the City says that it
met the applicable standard of care by taking reasonable care in carrying out
its sidewalk inspection.

[5]            
I have no difficulty concluding on the uncontradicted evidence that
Ms. Sullivan fell, as she described, and was injured. According to Ms.
Sullivan, just before her accident, at about 7:15 a.m., she was walking on a
sidewalk on Superior Street in James Bay. She was familiar with the route as
she lived nearby and walked it daily.

[6]            
Ms. Sullivan tripped and fell when the tip of her right shoe hit a
partially elevated panel of the concrete sidewalk. She did not notice the
elevation before tripping nor had she noticed it on any of her earlier
journeys.

[7]            
Ms. Sullivan’s foot hit the concrete with sufficient force to knock her
shoe off and she fell against a small, ivy-covered brick wall running parallel
along the property immediately adjacent to the inside edge of the sidewalk. A passerby
assisted Ms. Sullivan and another called for an ambulance.

[8]            
Ms. Sullivan went to hospital where she received first aid treatment and
was released later the same morning. Her injuries included a cut above the
right eye. The eye later turned black. Ms. Sullivan also sustained cuts and
abrasions to her right arm, hand and fingers. In addition, she bruised her
right knee and hip area and had a headache. Fortunately, none of these injuries
were long term. Ms. Sullivan testified that the injuries slowed her down for a
few days but that she was back to normal within a week.

[9]            
Immediately after release from hospital, Ms. Sullivan went to the City
and reported the accident. Later that day, she returned to the accident site
and observed that, in the meantime, the elevated portion of sidewalk had been
ground down. She took photos of the sidewalk and surrounding area but, in the
circumstances, the photos do not illustrate the vertical height of the
displacement. It is likely that a City work crew attended the site and ground
down the sidewalk immediately after Ms. Sullivan reported the accident.
Unfortunately, there was no evidence as to the specific height of the elevation
before it was ground down.

[10]        
Mr. Lai, an assistant director employed by the City, is responsible for
planning, traffic engineering, street design and project management. He is not
involved in sidewalk repair projects except in relation to budgeting questions.
The City has budgeted about $50,000 per year for sidewalk repairs for many
years.

[11]        
In 2004, the City created its current Sidewalk Policy for the inspection
of, among other things, sidewalks. The policy delegates to the water meter
reader the following responsibility:

Inspect all
Sidewalks to ensure that panels are not cracked or raised, thus creating a
displacement in elevation exceeding 35 mm. If the displacement equals or
exceeds 35 mm then this information shall be recorded and listed in the
Sidewalk Repair Report History.

The policy goes on to provide that the Supervisor and staff
of the Concrete Section of the Streets Division must annually inspect all
sidewalks not covered by inspections of the water meter reader. If they find
elevations exceeding 35 mm they must record and list them in the same manner as
the water meter reader.

[12]        
The policy ends with the following:

All displacements in elevation
that equal or exceed 35 mm shall be repaired as soon as staff and equipment are
readily available. Displacements less than 35 mm may be repaired at the
discretion of the Supervisor of the Concrete Section, as budget resources
allow.

It is, as a result, significant, in considering the
application of the policy in the present case, that there is no precise
evidence of the elevation of the sidewalk displacement.

[13]        
Ms. Sullivan did not measure the elevation but agreed that it was less
than the width of a ruler marked as an exhibit. Mr. Lai agreed during his
evidence that the width of the ruler was one and one-half inches. One and one-half
inches is 38 mm although Mr. Lai equated it to 35 mm. Mr. Reynolds, the water
meter reader, later measured the width of the ruler using the scale on his
handheld computer and concluded that it was about 37 mm.

[14]        
Mr. Reynolds’ measurement was incorrect. Either Mr. Reynolds’ scale is
wrong or he misread it in the courtroom. The ruler used for illustrative
purposes is much closer to one and one-quarter inches wide, or 33 mm, than one
and one-half inches.

[15]        
In the result, I conclude that the elevation was certainly less than 37
mm, and probably less than 35 mm, but am unable to conclude how much less. Mr.
Lai’s evidence and Ms. Sullivan’s concession are unreliable in the
circumstances because both assumed the ruler was 35 mm wide.

[16]        
Although Mr. Reynolds walks the city streets daily in the course of his
duties as the water meter reader and covers each area of the City about three
times per year, there is no evidence that he observed, recorded or listed any displacement
equaling or exceeding 35 mm on the sidewalk in question during the six months
before the accident. He testified that he attended the particular area in
February and June 2009 in connection with his duties. For the first six months
of 2009, the total number of reports for the entire city was 27 but none were
for the block in question.

[17]        
The City also relies on reports from the public of dangerous areas but
there was no evidence of any reports respecting the sidewalk in question.

[18]        
I do not accept the absence of a report by Mr. Reynolds as conclusive
that the elevation was, in fact, less than 35 mm. He may have failed to observe
it if it was present. But there is also no affirmative evidence that the
elevation was equal to or greater than 35 mm. Further, even if someone had
observed and reported the elevation as equal to or greater than 35 mm, the
policy calls for repair “as soon as staff and equipment are readily available.”

[19]        
Mr. Lai explained the financial considerations that resulted in the
choice to use 35 mm as a benchmark for sidewalk repair. Obviously, repairs
would cost more if the benchmark was lower. But that is not the only
consideration. What are the risk considerations? Unfortunately, Mr. Lai offered
no other explanation as to why 35 mm was the benchmark as opposed to some
lesser or greater elevation. In particular, he did not explain whether the risk
of tripping increases in a meaningful way at 35 mm as opposed to, for example,
30 mm.

[20]        
It seems apparent to me that a 30 mm elevation displacement on a city
sidewalk also creates a foreseeable risk of the type of fall and injuries that
Ms. Sullivan had. Without expert assistance, I am unable to conclude that
risk is meaningfully less at 30 mm than at 35 mm.

[21]        
The gaps in the evidence and the concerns arising from them require a
careful consideration of the law as it relates to whether a duty of care
existed and any standard of care that the City must meet. It also requires a
consideration of who bears the responsibility for the failure to address the
gaps.

[22]        
I start with a review of the law. The Supreme Court of Canada set out
the governing principles when considering the liability of government agencies
in negligence actions in Just v. British Columbia, [1989] 2 S.C.R. 1228,
64 D.L.R. (4th) 689. Those principles are rooted in the test set out in Anns
v. Merton London Borough Council, [1978] A.C. 728 at 751-52:

First one has to ask whether, as
between the alleged wrongdoer and the person who has suffered damage there is a
sufficient relationship of proximity or neighbourhood such that, in the
reasonable contemplation of the former, carelessness on his part may be likely
to cause damage to the latter – in which case a prima facie duty of care
arises. Secondly, if the first question is answered affirmatively, it is
necessary to consider whether there are any considerations which ought to
negative, or to reduce or limit the scope of the duty or the class of person to
whom it is owed or the damages to which a breach of it may give rise: [Citation
omitted.]

The Supreme Court of Canada approved this two-step approach for
determining whether a government agency, like the City, owes a duty of care to a
person, such as Ms. Sullivan.

[23]        
The first step offers little difficulty. There is sufficient proximity
between a municipal government and those who walk its streets that the latter
reasonably expect the sidewalks to be reasonably maintained and the former
foresees the risk of harm if it does not do so. Thus, a prima facie duty
of care exists in the present circumstances.

[24]        
The second aspect of the test must also be satisfied before finding that
the City owed Ms. Sullivan a duty of care. Here, the City does not rely on any
legislative limitation but claims it is exempt from liability based on its Sidewalk
Policy.

[25]        
In my understanding, the creation of a policy does not automatically
confer immunity. To the contrary, at 1238-39 of Just, the majority
stated:

Once a policy to inspect is
established then it must be open to a litigant to attack the system as not
having been adopted in a bona fide exercise of discretion and to
demonstrate that in all the circumstances, including budgetary restraints, it
is appropriate for a court to make a finding on the issue.

The majority went on to emphasize that complete Crown
immunity should not be restored under the guise of government designating its
decisions as policy.

[26]        
The decision in Just at 1240-42 highlights the importance of
distinguishing between governmental policy decisions and operational decisions.
True policy decisions exempt government from any liability; operational
decisions implementing those policies are not immune. Policy-making involves or
is dictated by financial, economic, social or political factors or constraints.
It is not for the court to second guess such decisions provided they are
properly made. The difference between policy and operation is usually found in
the level of government at which the decision-making occurs.

[27]        
The making of policy must be a bona fide exercise of discretion.
For example, as was pointed out at 1243 of Just, a decision not to
inspect at all may be an unassailable policy decision if it is “a reasonable
exercise of bona fide discretion, based, for example, upon the
availability of funds.” On the operational side, however, any decision
to inspect must result in a scheme that:

…is reasonable and has been
reasonably carried out in light of all the circumstances, including the
availability of funds, to determine whether the government agency has met the
requisite standard of care.

[28]        
Assuming that a duty of care is owed, the standard of care that
government owes differs from what an individual would owe. The frequency and
nature of governmental inspection “must be reasonable in light of all the
surrounding circumstances.” (at 1244). The nature of risk involved, budgetary
limits and the availability of personnel are relevant factors in determining
whether a government body has met the standard of care.

[29]        
In Just, the province conducted visual inspections of slopes and
rock faces adjacent to the highway to assess stability. The plaintiff was
injured and his daughter was killed when falling rock hit their vehicle while
they were travelling on the highway. Ultimately, the Supreme Court of Canada
determined that the frequency and other specifics of the inspection system
“were manifestations of the implementation of the policy decision to inspect
and were operational in nature.” (at 1246). As such, the court was
required to review the inspection scheme to determine whether the province
was negligent.

[30]        
Pausing here, and without regard to other recent decisions, my reading
of Just suggests that the City, having decided to inspect its sidewalks
and effect repairs in some instances, is not entitled to succeed on the second
aspect of the Anns test. As in Just, the City appears to owe a
duty of care and the focus should turn to whether the City met the standard of
care. This involves considering the reasonableness of its inspection system in
all the circumstances, including budgetary and personnel constraints.

[31]        
Plakholm v. Victoria (City), 2009 BCCA 466, a recent decision of
the Court of Appeal, is significant because it considers a policy very similar
to the City’s Sidewalk Policy. The plaintiff fell when she tripped over uneven
pavement while crossing a Victoria street that was in a state of disrepair. The
applicable policy provided a benchmark of 40 mm below which repair was at the
discretion of the manager or assistant supervisor.

[32]        
As in the present case, the City contended that its policy was bona
fide and immunized the City from liability. Finding that the trial judge
did not engage in the Just analysis that I have set out above, the Court
of Appeal ordered a re-trial for that purpose.

[33]        
Another decision of significance is Pamaran v. Victoria (City)
(1996), 32 M.P.L.R. (2d) 243 (S.C.). In that case, the court considered the Sidewalk
Policy with particular emphasis on how it deals with elevation differences of
less than 35 mm. On the evidence, the site where the plaintiff fell had an
elevation difference of about 25 mm. The judge concluded that the Sidewalk
Policy in its entirety was a bona fide policy entitling the City to
immunity and dismissed the plaintiff’s claim accordingly. He went on to find
that the City had, in any event, carried out its inspection program in a
reasonable manner.

[34]        
I observe that in Plakholm, the Court of Appeal quoted
extensively from the judgment in Pamaran in its discussion of the need
for a similar analysis. While the Court of Appeal did not expressly approve the
result in Plakholm, it appears to have accepted that the analysis and
decision were correct.

[35]        
I also observe that other judges of this court have followed Pamaran.
See Beadle v. Nanaimo (City), 2009 BCSC 1506 at paras. 16-17; and Einarson
v. Richmond (City) (1998), 47 M.P.L.R. (2d) 70 at para. 12.

[36]        
The principles of judicial comity require me to follow and apply Pamaran
even though I would conclude, if permitted to consider the matter afresh, that
the City owed a duty of care to Ms. Sullivan and that the Sidewalk Policy did
not entirely immunize the City from her claim.

[37]        
It is necessary, in the circumstances, that I also set out my further
conclusions respecting the evidence, the burden of proof and whether the City
met the applicable standard of care.

[38]        
The City demonstrated the existence of an inspection policy. It is up to
the plaintiff to establish that the policy is unreasonable, having regard to
the factors set out earlier. For example, the plaintiff could have led expert
evidence to challenge the 35 mm benchmark but did not do so. It is obvious that
the City took safety considerations into account but, absent expert evidence, I
am unable to say that the 35 mm benchmark is so far off the mark as to
render its inclusion unreasonable.

[39]        
Ms. Sullivan also bears the burden of establishing that the City failed
to meet the standard of care. She did not establish that the City could
reasonably afford a better inspection system or that the inspector failed to
carry it out. At most, she established that the inspector might have failed to
observe an elevation change that exceeded 35 mm and, as a result, failed to
record and report it. It is likely that the elevation change was less than 35
mm. In that case, the policy imposed no obligation on the inspector to record
and report it. Even if reported, the policy imposed no obligation on the City
to immediately repair the displacement. Ms. Sullivan has not demonstrated
that the City failed to follow its own policy or that the operation of the
policy is so unreasonable in all the circumstances that the City cannot rely on
it.

[40]        
It follows that I must dismiss Ms. Sullivan’s claim. If she had
established liability, a fit award for pain and suffering would have been
$1,500. Although Ms. Sullivan would have preferred me to order damages in
an amount to punish the City, I would have declined to do so. Her claim is only
for compensatory damages and punishment is not an appropriate factor in
determining such an award.

[41]        
Ms. Sullivan’s claim is dismissed with costs on Scale A to the City.

                “M.D.
Macaulay, J.”               

The Honourable Mr. Justice Macaulay