An Ontario Superior Court judge has found a plaintiff one third contributorily negligent for failing to observe the curb on which she tripped and fell, even though it was in plain sight. In Henhawk v. Brantford (City), Justice David S. Crane explained the basis on which he had faulted the plaintiff:
“Although there is no duty on this plaintiff to watch the place where her next footfall will occur, there is also no evidence as to any obstructions to the plaintiff’s line of sight, such as motor vehicles or other obstacles. The weather was clear and sunny. I find on the evidence that the subject curb and platform area would have been in the plaintiff’s vision for a considerable time as she approached it on foot. The plaintiff does not state in her evidence where she was looking. In any event, my examination of the numerous photographs in evidence command the conclusion that this curb of some fifteen to eighteen feet in length, demarcated at the east end by a concrete abutment and vehicle ramp with curb, and at the west end, by a wheelchair ramp, all backed by an elevator enclosure, was visible upon reasonable vigilance.”
Justice Crane’s reasoning will likely be applied in other occupier’s liability cases, since in this type of action, it is often part of the defence case, that the plaintiff simply failed to watch where he/she was going.