The Supreme Court of Canada has found a snowboarder, who was going “too fast or not paying proper attention,” liable for a skiing accident that injured a young boy. The court also found the boy’s father contributory negligent for his role in not picking a safer route.
The accident took place on February 9, 2002 at on Grouse Mountain, which is near Vancouver.
The plaintiff was five weeks short of five years of age at the time of the accident. He was skiing with his father. He had been skiing a number of times and according to the evidence had advanced to the stage where he was able to snowplough on his own. His father testified that he was skiing a few meters ahead of his son, within “voice distance”, so that he was able to choose a safe route. He testified that he repeatedly looked over his shoulder to make sure that the infant plaintiff was alright.
The defendant was 18 years old at the time. He had been snowboarding for about four years. He testified that he had been on Grouse Mountain many times and by the date of the accident was familiar with its runs.
On the day in question, the father led his son down the slopes, traversing back and forth.
At one point, he had to navigate some fences, which led to a dip on the slopes. They could not see the skiers behind them.
At that point, the father “heard a scream. He turned and saw what he described as a ‘tumbling snowball.’ He then realized that his son had been in a collision. He described what he thought was the point of the collision as 10 to 20 meters below the fences in an area where the run dipped. “
The boy sustained a spiral fracture of the right tibia, and a fracture of the right fibula. He eventually was taken down the hill to an ambulance and to the hospital.
The defendant testified that he was “traveling relatively slowly down” the slopes in a wide s-curve pattern. He testified that “just before the collision he saw no one in front of him. But as he was turning to his right he felt something hit him on the back of his right hip.”
The boy and his father sued.
In assessing the liability, the court first rejected the defendant’s contention that the father was negligent because he was skiing ahead of his son.
The court then recapped “the possible scenarios.
“The first is that the defendant, snowboarding too fast, or not paying proper attention, collided with the infant plaintiff. Second, it is possible that the defendant cut the infant plaintiff off, and that the infant plaintiff was unable to stop in time and struck the defendant. The third possibility is that the infant plaintiff was in fact behind the defendant and due to inexperience was not able to stop before he struck him.”
The court embraced the first scenario that the defendant was either going too fast or, more likely, was not paying proper attention.
On the subject of contributory negligence, the court found that the boy could not be contributory negligent, citing Hixon v. Roberts, 2004 BCCA 335 (CanLII), 2004 BCCA 335.
“The difficulty here, which has given me some pause, is that on these facts I conclude that it is the father who was contributory negligent. It was his evidence that there was a dip in the ski run close to where the collision occurred. On the evidence I find that the dip was at the bottom of the funnel created by the snow fences. Indeed, the father expressed the opinion that he thought the defendant failed to see his son because his son was below the dip. I conclude it was negligent of the father to lead his son across the Cut so close to the dip that a person above it would not be able to see the child.
“In the circumstances here, the father is not a party. The Negligence Act, R.S.B.C. 1996, c. 333 states in s. 4 that where damage has been caused by the fault of two or more persons the court must determine the degree to which each person was at fault. But that section goes on to say that if two or more persons are found at fault, they are jointly and severally liable to the person sustaining the damage.
“The person sustaining the damage is the infant plaintiff. I conclude an appropriate apportionment of damages is 75 percent to the defendant and 25 percent to the father.”
As for damages, the plaintiff sought $50,000, but the case law he used for support lacked applicability.
“The infant plaintiff in this case suffered a fracture to the tibia and the fibula,” wrote the court. “His leg was placed in a cast, and shortly thereafter the cast was removed to reset the bones. A second cast was removed in early April 2002. Thereafter, although he was reluctant to bear any weight on his leg, he improved quickly. By June 2002 he was active, although there was some limping, and a concern of leg length discrepancy. Later, doctors confirmed that there was no evidence of any length discrepancy. The infant plaintiff recovered completely and is now active in age appropriate activities, including sports. The medical evidence is that his injuries will not have any impact upon his future ability to work. “
Thus, the court awarded general damages of $30,000.
Gregorowicz v. Lee; SUPREME COURT OF BRITISH COLUMBIA; 2010 BCSC 478 (CanLII); Docket: S072621; 4/9/10
