If a City is going to fix a sidewalk, it has to do a good job

The Ontario Court of Appeal says that the City of Burlington was partly liable for a woman's broken leg because the City's sidewalk allowed for the pooling of liquid on the sidewalk which caused her to slip and fall. Cartner v. Burlington (City), 2010 ONCA 407.

The City had tried to fix the cement sidewalk by grinding down a trip ledge. In the process, the City reversed the drainage of water and liquids from the sidewalk. After the grinding of the sidewalk, water and liquids pooled in a corner of the sidewalk.

The Court of Appeal also said the correct test is the "but for" test, namely that "but for" the pooling of water caused by the reversed drainage, caused by the grinding down of the trip ledge, the plaintiff would not have fallen. The City should have replaced the concrete slab instead of grinding it down since this caused a greater or additional problem.

According to the Court of Appeal, the trial judge was correct in concluding that the neligence of the City was a "cause" and that it did not have to be the only "cause" of the plaintiff's injury.

I wonder if the "but for" test, however, was the correct test in this instance? It seems to me it could also be said that the accident would not have occurred "but for" the plaintiff walking along the sidewalk and not stepping over the pooled liquid, yet there is no mention in the judgment about contributory negligence. Doesn't this make the City an insurer for those who have trouble stepping over defects on its sidewalk? Is that expense the City taxpayers should have to bear?

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