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June 2010, Volume 21 Number 2 |
Inspection and Repair Policies and a School District’s Liability
(The following article is reprinted with permission from “Risk Management in Education”, February 2010, Volume 10, No. 3, and has been edited for length. For a full transcript, including Court commentary on legal points in the cases referred below, please contact David Beal at OSBIE.)
School Districts have many walkways over their properties. These walkways may become uneven for a variety of reasons and slip and fall injuries may result. The inspection and repair policies of the School District can have a bearing on the question of the School District’s liability for such slip and fall injuries. This was illustrated by a recent case from British Columbia involving a municipality.
Background
In Beadle v. City of Nanaimo, (2009) B.C.J. No 2191, 2009 BCSC 1506, a claim for injuries resulting from a slip and fall accident was made against a municipality. The plaintiff tripped on the vertical face of a difference in elevation of a municipal sidewalk. The difference in elevation was approximately .5 inch or approximately 14 millimetres. The plaintiff’s evidence was that she had not noticed the difference in elevation. After the accident, the plaintiff’s husband reported the matter to the City’s Public Works Yard, and the municipality inspected and made repairs.
The municipality had a by-law regarding sidewalk inspection and repair which included “checking for sections of sidewalk cracked or separated with a greater than 25 millimetre difference in elevation” (at para.10). The municipality led evidence of its policy relating to sidewalk repairs. The policy was said to be “dictated by the City’s budgetary and manpower constraints” (at para.11).
The municipality’s position was that it was not liable because “the difference in elevation at issue was below its threshold to repair” (at para.13)
Decision
The Court referenced a number of cases relating to the liability of a government agency. It was noted that the exemption from liability may arise from public policy decisions. A Supreme Court of Canada case was quoted as to what are considered policy decisions (at para.15):
“True policy decisions involve social, political and economic factors. In such decisions, the authority attempts to strike a balance between efficiency and thrift, in the context of planning and predetermining the boundaries of its undertaking and of their actual performance. True policy decisions will usually be dictated by financial, economic, social and political factors or constraints.”
The Court further reviewed a number of similar cases where plaintiffs had tripped over uneven sidewalks. These cases noted the cost factors which had been considered by municipalities in setting the threshold for repairs and in attempting “to balance financial considerations against the need to repair the physical infrastructure of the City” (at para.18). The requirement was not to maintain sidewalks at a perfect level.
The court characterized the plaintiff’s case in “Beadle” as “primarily based on her assertion that since she fell, it must have been unreasonable or negligent for the City to have left an edge on which she tripped unrepaired.” The Court again quoted the legal authorities to the effect that “it would be requiring the impossible of the municipality to require that it maintain all its sidewalks in perfect level” (at para.36). (NOTE: The Court concluded that the claim should be dismissed).
It is worth noting as well that evidence of the maintenance programs carried out by school districts has been a factor in other cases. In “Nyuli v. The Board of School Trustees of School District # 22(Vernon)”, (No.8700220, Vernon Registry, August 8, 1991)[1991] B.C.J. No. 2599, the court held that the maintenance program of the school district was reasonable in deciding the case for the school district. In “Mynott v. The Board of Trustees of School District No. 43 (Coquitlam) et al.” [2005] B.C.J. No. 760, 2005 BCCA 204, the finding that “the school district’s system of inspection was adequate and reasonable” (at para. 23) was noted in the determination for the school district.
Considerations:
School districts which do not have a policy relating to inspection and maintenance matters may wish to consider implementing such a policy. In formulating such a policy, school districts may wish to consider obtaining information from their local municipalities concerning the standards for inspection and repair which the municipalities use and the reason for such standards. Consideration could also be given to the school district’s budgetary and manpower constraints. The policy arrived at would then involve an attempt to balance financial considerations against the need to repair the school district’s physical infrastructure. As indicated by the legal authorities, having a policy relating to inspection and maintenance can provide an important defence for school districts facing personal injury claims arising from defects. In addition, the exercise involved in such a policy will assist the school district in ensuring it has dealt with such matters in a rational way in light of the relevant constraints it faces.
Submitted by James P. Carwana, Coutts Pulver LLP
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