Parks and playgrounds are commonplace in Canadian neighbourhoods, but many people are not aware of the potential injuries that can occur there. It is estimated that around 28,000 children are injured at playgrounds each year in Canada, with 14% of these being head injuries.
Municipalities and other organizations that maintain play structures may be held liable for an injury that is sustained there, which could lead to an expensive personal injury lawsuit.
So what should you know about playground liability?
A municipality has a duty to ensure people are not exposed to an unreasonable risk of harm on their property. If they breach this duty, they could be liable for negligence.
Negligence is at the crux of many cases that make their way to court, and is the most common form of tort action. However, it can be difficult to prove, even if on the face of it someone has a clear case.
The Supreme Court of Canada defined negligent conduct in the 1999 decision Ryan v. Victoria (City): “Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances.”
Courts often use the “but for” test to prove negligence and establish a causal link. The injured person must prove that “but for” the negligent conduct the accident would not have occurred.
Who bears the liability? Municipal employees in general have immunity, which means they cannot be held personally liable for anything they have done in the scope of their employment, so long as they acted in good faith. Therefore, it is the municipality (the employer) who can be held liable for negligence. If an independent contractor is involved in the maintenance or inspection of municipal property, they are responsible for their own activities, acts and omissions.
What is a “duty of care”?
What’s crucial for municipalities is the concept of a duty of care. Duty of care is a legal responsibility of a person or organization to avoid any acts or omissions that could reasonably be foreseen to cause harm to others.
The Occupiers’ Liability Act sets out the responsibilities of an occupier of a property, such as a municipality and its recreational facilities (e.g. parks, playgrounds, sports fields, municipal buildings, etc.). The Act states that an occupier “owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.”
The kinds of acts that breach this duty of care are ones that fall below the standard of care. The standard of care is that which would be expected of an ordinary, reasonable and prudent person in similar circumstances. “Perfection” is not the standard that the law expects. Legislation, regulations, by-laws, industry standards, and municipal policies/procedures help define the standard of care. Note that, children are often owed a higher standard of care than adults.
So, for example, if a municipality builds a playground that does not conform to the recognized Canadian Playground Safety Standard, CAN/CSA-Z614-14 “Children’s playspaces and equipment”, it is likely that it would be found to have breached the standard of care.
If someone is injured in a public place, such as a municipal playground, they may have a case for proving that the municipality was negligent.
To do so, the injured party needs to show the following:
- They sustained an injury;
- The municipality owed a duty of care;
- The conduct of the municipality fell below the standard of care; and
- The injuries were caused by the breach of the standard of care.
A British Columbia decision from a few years ago illustrates some of the legal issues that a municipality may face.
In Kelemen v. Corporation of Delta, a young man was injured using a swing in a public park in Delta, B.C. At the time, he was swinging to the limit of the swing, almost parallel to the ground and at a height of 10 or 11 feet. As he was proceeding downwards from the back part of the swing, the chain link slipped through a gap in the S-joint attached to the swing and he fell to the ground. He sustained injuries to his hands, neck and lower back.
He sued the Corporation of Delta for damages, claiming that the Corporation of Delta was in breach of its duty under B.C.’s Occupiers Liability Act, 1979, which was in force at the time. The Corporation of Delta argued that the man had been using the swing inappropriately, which contributed to the malfunction of the equipment and that it had performed an adequate inspection of the playground in the week prior to the accident.
Justice Shaw confirmed that the Corporation of Delta had a duty to undertake regular inspections to ensure the equipment was reasonably safe, with particular attention being paid to known potential sources of danger. Despite two inspections of the swing being carried out by the Corporation of Delta a little over a week before the accident, Justice Shaw concluded that those inspections had not been sufficiently thorough, as they should have noticed that one of the S-joints had an excessive gap, and fixed it. Justice Shaw also concluded that the man used the swing within the normal expected usage. Therefore, he found that the Corporation of Delta was liable for the accident, and ordered damages to be paid to the injured man.
What can municipalities do?
As the case above demonstrates, the most effective way for municipalities to reduce liability is to ensure they have done their due diligence. That is, having appropriate procedures in place to show it acted reasonably. For example:
- Doing regular, thorough, inspections of playground equipment and documenting the scope of those inspections
- Conducting timely repairs and maintenance, and documenting what and when this is done
- Having policies and procedures in place, which are then followed, and
- Having their employees regularly participate in training and updates.
Record-keeping is an integral part of demonstrating due diligence. Not only does it prove you have done what you are supposed to have done, but it also leaves less room for error, leads to uniformity and provides clearer understanding.
While serious injuries at playgrounds are still relatively rare, municipalities should be proactive in managing the risk in the first place, in order to reduce the possibility of any injury.