Labanowicz v Fort Erie (Town), 2017 ONSC 630 (CanLII)

Labanowicz v Fort Erie (Town), 2017 ONSC 2072 (CanLII)

Date: 2017-01-27

Facts

The plaintiff, Ms. Wanda Labanowicz, was riding as a cyclist on a paved trail in Fort Erie (the Defendant) when she ran into the unmarked sleeve of a bollard. The approximately four foot tall bollard post had been removed and only the 4 inch high sleeve was in place. Ms. Labanowicz was not wearing a helmet and suffered brain injuries.

It was unknown who removed the bollard. Fort Erie did not appear to have a consistent system in place for securing the bollards.

Fort Erie built the trail and due to safety concerns commissioned a report to address the use of bollards at intersections of the trail and local roads. The report stated that it was necessary to implement trail safety measures. These safety measures should include painted diamonds around bollards to mark their location. The Town did paint diamonds around 8 bollards at 9 intersections. Years later, 6 additional bollards were installed but they were not marked with pavement marking diamonds. The Town was unable to explain why different bollards were maintained differently.

Judgment was found in favour of the Plaintiff.

Plaintiff’s Human Factors Position

Mr. Tom Smahel presented human factors evidence that the luminosity and conspicuity of the sleeve was low and that a typical cyclist reaction time would not have been sufficient to avoid a collision

Mr. Smahel opined that a cyclist would not have been expecting an unmarked hazard and therefore would not have been looking at the pavement in search of such a hazard.

Defendant’s Human Factors Position

Mr. Hart Solomon, a traffic engineer, provided testimony about his experience riding on the trail. When Mr. Solomon rode, he stayed to the right side and did not ride down the middle of the trail, and he maintained a proper lookout for the sleeve.

Judge’s Rationale

The judge stated that Mr. Solomon, as a traffic engineer, had only a passing knowledge on human factors and did not have the training, work experience, and education to offer an opinion on some of the human factors issues to which Mr. Smahel directed his testimony. The judge stated that the human factors evidence provided by Mr. Solomon was most unhelpful.

The judge stated that the defence erred by not calling upon a human factors expert.

The judge stated that the defence did not submit any admissible evidence on the issue of the impact the plaintiff’s lack of a helmet. The judge also stated that the defense would have been well advised to call upon a bio-mechanical engineer to testify as to the perils of not wearing a bicycle helmet.