



COURT OF APPEAL FOR ONTARIO

CITATION: Campbell v. Bruce (County), 2016 ONCA 371

DATE: 20160517

DOCKET: C59966

Doherty, MacPherson and Miller JJ.A.

BETWEEN

Stephen Campbell, Patti Campbell, and Liam
    Campbell and Jordann Campbell,
by their Litigation Guardian, Patti Campbell

Plaintiffs (Respondents)

and

The Municipal Corporation of the County of Bruce

Defendant (Appellant)

T.R. Shillington and Jonathan de Vries, for the
    appellant

Peter W. Kryworuk and Alysia M. Christiaen, for the
    respondents

Heard: April 28, 2016

On appeal from the judgment of Justice M.A. Garson of the
    Superior Court of Justice, dated January 16, 2015, with reasons reported at
    2015 ONSC 230.

MacPherson
    J.A.:

A.

Introduction

[1]

The appellant, the Municipal Corporation of the County of Bruce,
    constructed a public park for people to ride on various trails and obstacles
    with their mountain bikes. The respondent, Stephen Campbell, fell while
    attempting to cross a constructed obstacle near the entrance of the park. He
    fractured his C6 vertebrae and was rendered quadriplegic.

[2]

Following a seven-day trial with seven witnesses, the trial judge found
    the municipality liable for Mr. Campbells injury. The trial judge also found
    that Mr. Campbell was not contributorily negligent with respect to the
    accident.

[3]

The municipality appeals. The appeal requires consideration of the
    concept of negligence as defined in the
Occupiers Liability Act
, R.S.O.
    1990, c. O.2 (the 
OLA
). The appeal also raises the issue of
    contributory negligence.

B.

FACTs

(1)

The parties and events

(a)

The Park

[4]

In 2005, the municipality opened the Bruce Peninsula Mountain Bike
    Adventure Park (the Park). The Park consisted of a series of bike trails, as
    well as a skills development area with various wooden obstacles (the Trials
    Area) where riders could learn what to expect on the trails. The Park was open
    to the public with no admission fee and was unsupervised.

[5]

In designing and constructing the Park, the municipality heavily relied on
    the International Mountain Bike Association (the IMBA) for best practices and
    risk management. With respect to the construction of the Trials Area, the
    ground around each obstacle was solid limestone with a thin layer of soil on
    top. The municipality considered and rejected using mulch to soften the ground,
    as it was concerned about creating a false expectation for riders.

[6]

For the trails and obstacles in the Park, the municipality used a
    difficulty rating system similar to that of a ski hill (
i.e.
black
    diamond). Because this type of Park was new to Ontario, the municipality
    automatically increased the difficulty rating for each obstacle in the Trials
    Area by one (the easiest being black diamond).

[7]

The municipality installed signs that cautioned riders: (1) to ride
    within their ability and at their own risk; (2) that helmets are mandatory; and
    (3) to yield to other groups.

[8]

The municipality promoted the Park as a family venue. A promotional
    brochure for the Park contained a warning that mountain biking can be risky and
    that visitors should ride within their own abilities and at their own risk.

[9]

The municipalitys incident analysis and reporting system consisted of
    an email address and 1-800 number for people to self-report. There was no
    mechanism to collect and assess ambulance calls at the Park until after the
    respondents accident. The evidence at trial revealed that there were at least
    seven ambulance calls before the respondents accident, all for riders aged 40
    plus. One of those calls was for Ian Ross, who suffered a broken neck on a
    different, and more difficult, wooden obstacle three months before the
    respondents accident.

[10]

The Trials Area consisted of 10 wooden obstacles. The idea was that
    riders would try these obstacles to familiarize and test themselves for the
    terrain and obstacles they would encounter on the bicycle trails in the Park.

[11]

Two of the wooden obstacles in the Trials Area were called Pee Wee and
    Free Fall. Both were teeter-totter type structures. Free Fall was located
    directly behind Pee Wee so that riders could, but did not have to, try them
    consecutively a few seconds apart.

[12]

Pee Wee was a low teeter-totter structure with little elevation above
    the ground.

[13]

Free Fall was a steeper and higher teeter-totter structure. The rider
    would pedal the bicycle to ascend the wooden plank structure to its pivot point,
    which was 26 inches above the ground. At the pivot point, the teeter-totter
    would dip down and the rider would descend the other side of the plank
    structure until reaching the ground.

(b)

The accident

[14]

Mr. Campbell, his wife Patti, and his two children, Liam (aged 12) and
    Jordann (aged 10), rented a cottage in the municipality for a family holiday in
    August 2008. They saw a tourism brochure about the Park. Mr. Campbell was an
    active and athletic 43-year-old man with extensive mountain bike trail
    experience. He decided that the family would check out the Park.

[15]

The family arrived at the Park on August 6, 2008. They started in the Trials
    Area. While there, Mrs. Campbell fell off Pee Wee but was able to stabilize
    herself on a nearby tree. The family also rode on the trails in the Park. Mr.
    Campbell gave his helmet to his son who had forgotten his helmet. That evening,
    Mr. Campbell drove 30 minutes to Owen Sound and purchased two new helmets.

[16]

The next day, August 7, the Campbell family returned to the Park.
    Everyone wore a helmet. They went to the Trials Area again. Mr. Campbell went
    over Pee Wee successfully.

[17]

Mr. Campbell continued onto Free Fall. He did not have enough speed to
    make it over the pivot point. He started to fall. He tried to control his fall
    by popping a wheelie (staying on the bike and attempting to land it on its
    back wheel) to the right of Free Fall. In doing so, he kept his hands on the
    handlebars. Mr. Campbell went over the handlebars and landed on his head on the
    ground. He broke his neck. Sadly, he became quadriplegic.

(2)

The trial judgment

[18]

The trial proceeded on the issue of liability only. The governing law in
    the case was s. 3 of the
OLA
:

3. (1) An occupier of premises 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.

(2) The duty of care provided for in subsection (1)
    applies whether the danger is caused by the condition of the premises or by an
    activity carried on on the premises.

[19]

The trial judge was satisfied that the municipality had breached the
    duty it owed to Mr. Campbell under s. 3 of the
OLA
to ensure that he
    was reasonably safe while in the Park. He found that the municipality had
    breached its duty in five ways: (1) its failure to post proper warning signs;
    (2) its negligent promotion of the Park; (3) its failure to adequately monitor
    risks and injuries at the Park; (4) its failure to provide an adequate
    progression of qualifiers; and (5) its failure to make the Trials Area a
    low-risk training area.

[20]

The trial judge went on to find that each of the first four breaches of the
    duty were an independent cause of Mr. Campbells injuries. However, for the fifth
    breach, the trial judge found causation was not made out.

[21]

On four other issues, the trial judge found that the municipality did
    not breach its duty of care to Mr. Campbell: (1) its failure to post an
    instruction that a minimum speed was required; (2) its failure to employ an
    attendant at the Park; (3) its failure to obtain an engineering opinion on the
    design of Free Fall; and (4) by permitting the ground near Free Fall to be
    dangerously compacted.

[22]

Finally, the trial judge found that Mr. Campbell was not contributorily negligent
    in deciding to ride on Free Fall or in the manner in which he attempted to
    extricate himself from the situation once he started to fall.

[23]

The municipality appeals on all issues, including the duty and standard
    of care, causation and contributory negligence. The Campbells do not
    cross-appeal any of the conclusions of the trial judge that went against them.

C.

Issues

[24]

The appellant raises five issues:

(1)

Did the trial judge impose an incorrect and overly onerous duty of care?

(2)

Did the trial judge err in assessing the question of inherent risk?

(3)

Did the trial judge err in his analysis of the standard of care?

(4)

Did the trial judge err in his analysis of causation?

(5)

Did the trial judge err in his assessment of contributory negligence?

D.

Analysis

(1)

Duty of care

[25]

The appellant contends that the trial judge was required to assess its
    conduct in light of its duty to take reasonable care as an occupier. According
    to the appellant, the trial judge did not do this; instead his description of
    the appellants duty practically rendered the appellant an insurer and improperly
    focused on the nature of the respondents injury. The appellant points to the
    following passages in the trial judges reasons:

[216]  Given the role of the wooden features structures to
    allow riders to test and assess their level of skill, it is logically
    foreseeable that some riders, particularly novice and beginner, would pass the
    skills testing and others would fail (i.e. fall off the features). In my view,
    it is incumbent on the County to ensure that those who fail the test can do so
    safely.



[224] The County failed  to protect [Stephen Campbell] from
    catastrophic harm.

[26]

I do not accept this submission. The leading case dealing with duty of
    care under the
OLA
is
Waldick v. Malcolm
, [1991] 2 S.C.R.
    456. In that case, Iacobucci J. articulated the purpose of the
OLA
, at
    477:

The goals of the Act are to promote, and indeed, require where
    circumstances warrant, positive action on the part of occupiers to make their
    premises reasonably safe.

[27]

Iacobucci J. also discussed the contents of the duty of care under the
OLA
,
    at 472:

[T]he statutory duty on occupiers is framed quite generally, as
    indeed it must be. That duty is to take reasonable care in the circumstances to
    make the premises safe. That duty does not change but the factors which are
    relevant to an assessment of what constitutes reasonable care will necessarily
    be very specific to each fact situation  thus the proviso "such care as
in all circumstances of the case
is reasonable
".                                                            [Emphasis
    in original.]

[28]

The trial judge specifically cited and applied
Waldick
in his
    reasons for judgment. He considered the knowledge, decisions and actions of the
    appellant with respect to the design, construction and operation of the Trials
    Area of the Park.

[29]

In the context of an extensive discussion of these factors, I do not
    think that the trial judges use of the word ensure in the above passage
    equates to him saying that the municipality became in effect an insurer for
    all activities in the Park. Rather, a fair reading of the passage, in
    conjunction with the rest of the reasons on duty of care, is that ensure
    means take appropriate care.

[30]

Nor do I think that the trial judges use of the words catastrophic
    harm means the trial judge improperly inserted the nature of the potential
    harm to users of the Park into the analysis. In discussing duty of care under
    the
OLA
in
Kennedy v. Waterloo County Board of Education
(1999), 45 O.R. (3d) 1 (C.A.), Feldman J.A. said, at 11-12:

In
Veinot v. Kerr-Addison Mines Ltd.
, [1975] 2 S.C.R.
    311 at p. 317, 51 D.L.R. (3d) 533, Dickson J, speaking for the majority, quoted
    with approval several factors listed by Lord Denning on the issue of whether an
    occupier has taken reasonable care:

The following excerpt from Lord
    Denning's judgment [
Pannett v. McGuinness & Co. Ltd.
, [1972] 3
    W.L.R. 387] aptly expresses in my opinion the more salient points a judge
    should have in mind when considering intrusions upon land:

The long and short of it is that
    you have to take into account all the circumstances of the case and see then
    whether the occupier ought to have done more than he did. (1) You must apply
    your common sense. You must take into account the gravity and likelihood of the
    probable injury. Ultra-hazardous activities require a man to be ultra-cautious
    in carrying them out. The more dangerous the activity, the more he should take
    steps to see that no one is injured by it.

[31]

In my view, the trial judges reasons are consistent with this passage.

(2)

Inherent risk

[32]

The appellant submits that the trial judge was required to assess
    whether the risk that materialized in this case was within the inherent risks
    of the sport of mountain biking, both in general and in the particular use of
    Free Fall.

[33]

According to the appellant, the trial judge correctly recognized the
    principle of inherent risk and the fact that the respondent knew and acknowledged
    an inherent risk. However, the appellant says that the trial judge fell into
    error by using the respondents subjective inability to foresee the actual
    damage he sustained as somehow delineating the scope of inherent risk. The
    faulty reasoning, the appellant submits, is this:

[209] Although [Stephen Campbell] foresaw risk of some injury,
    he did not foresee the severity of the potential injury.

[34]

I am not persuaded by this submission. There is no doubt that the
    respondent, an experienced mountain biker, assumed the risk of riding on the
    bicycle trails in the Park.

[35]

However, the trial judge drew a distinction between the bicycle trails
    and the Trials Area in the Park. He referred to the evidence of Chris La Forest,
    the municipalitys Director of Planning and Economic Development and principal
    designer of the Park. The trial judge pointed out, at para. 133, that Mr. La Forest
    testified that he had attempted Free Fall more than 60 times and fallen off
    many times.

[36]

The trial judge described the respondents experience in this fashion:

[25] He had been trail riding since 1990. He had extensive road
    and trail experience, yet no experience with wooden technical features or
    apparatus (except perhaps riding over a bridge in a swampy trail area).

[37]

The trial judge then concluded:

[193] I was struck by the dual risks associated with Free Fall,
    namely riding too slow and losing momentum or riding too fast and being
    launched off the end of the feature. Balancing on the board was also critical
    to success.

[194] [Chris La Forest] was insistent that users of the park
    needed to self-assess. Yet, I am troubled by how novice riders
or riders with trail experience but not features experience
,
    can self-assess when they may not be aware of all of the skills required to
    successfully manoeuver the feature.



[223] In all of the circumstances of this case, I am satisfied
    that the County has breached its duty to adequately warn [Stephen Campbell] of
    the dangers of Free Fall, that an ordinary person, exercising common sense,
    could not perceive or appreciate. [Emphasis added.]

[38]

I do not see a problem with any of this reasoning. In my view, it
    properly delineated the meaning of inherent risk in this case.

(3)

Standard of care

[39]

The appellant contends that the trial judge did not articulate the
    standard of care to which the municipality was subject. The trial judge referred
    to Free Fall as a hidden or unexpected hazard, but did not spell out the actual
    nature of the hazard. Nor did the trial judge indicate what the municipality
    could have done to avoid liability.

[40]

I disagree. The trial judge clearly identified the nature of the
    problems posed by Free Fall, including: (1) riding too slow and losing momentum;
    (2) riding too fast and being launched off the end of the structure; and (3) failing
    to appreciate that, in the case of a fall on Free Fall, the rider must,
    contrary to ones natural instincts, immediately release ones grip on the bike
    and jump clear of the falling bike.

[41]

On the question of what the appellant could have done differently, the
    trial judge was clear and concise:

[220] There were no instructional signs, no requirements to
    complete an easy trail or Pee Wee on multiple occasions prior to attempting
    Free Fall, no warning of serious injury, and no instruction on how to extricate
    oneself from the feature.

[42]

The appellant also challenges the trial judges four individual findings
    that it breached the reasonable standard of care of an occupier. These four
    breaches are in relation to the municipalitys: (1) failure to post proper
    warning signs; (2) negligent promotion of the Park; (3) failure to adequately
    monitor risks and injuries in the Park; and (4) failure to provide an adequate
    progression of qualifiers in the Trials Area.

[43]

On the warning sign issue, the appellant submits that the trial judge
    did not identify the actual signs the municipality should have posted to meet
    its standard of care.

[44]

I disagree. The trial judge said:

[242] The hazard that [Stephen Campbell] faced was unexpected
    and not readily apparent to [him]. The County could have and should have placed
    warning signs regarding risk of serious injury and the level and type of
    expertise required to ride this feature without serious injury.



[276] A single black diamond is insufficient to identify this
    risk. Unlike on many parts of the trail, a rider has no opportunity to place
    their feet down on the ground if they lose momentum or balance on Free Fall.
    There are no posted instructions on how to dismount, or on whether to maintain
    control of the bike.

[45]

On the promotion of the Park issue, the appellant makes a similar
    complaint; it says that the trial judge did not specify what warning should
    have been in its brochure promoting the Park.

[46]

Again, I disagree. The trial judge said:

[289] The brochure should have contained more detailed warnings
    about the skill level required to use the features as well as the risks of
    injury from being off the ground.

[47]

On the monitoring risks issue, the appellant points to the trial judges
    statement at para. 296: I am not sure what steps would have been taken had the
    County been aware of the Ian Ross accident on the day it occurred. The
    appellant asserts that if a trier of fact cannot ascertain what an appropriate
    standard of care would be, there can be no breach.

[48]

I do not accept this submission. In my view, the appellant misapprehends
    the comment in paragraph 296 by suggesting that it speaks to an inability to
    articulate an appropriate standard of care.

[49]

The reality is that several riders had been injured, including seriously
    injured, on the wooden obstacles in the Trials Area before the appellants
    accident. The trial judge described the appellants knowledge of, and
    non-reaction to, these injuries in this fashion:

[160] [Chris La Forest] agreed there was no formal manual or booklet
    or policy regarding the use or maintenance of the features. Rather, these were
    operational issues addressed on a daily basis.

[161] He also agreed that the incident analysis and reporting
    system consisted of an email address and a 1-800 number for persons to report
    such incidents. There was no box at the park for forms.

[162] There was also no mechanism to collect and assess
    ambulance calls at the park until after the accident.

[163] In reviewing an Ambulance Incident Report for the park,
    he agreed that he was not aware of earlier incidents at the park before the
    accident.

[50]

In my view, all of these points are responsive to the standard of care
    issue and support the conclusion the trial judge reached at paragraph 297:

[297] It is hard to conceive that in a sport where injury is
    very common and falling is almost a certainty at some point in time, that a
    system would not be in place to monitor serious injuries.

[51]

Finally, the appellant asserts that the trial judge did not specify what
    would constitute an adequate progression of obstacles in the Trials Area.

[52]

I am not persuaded by this submission. Pee Wee and Free Fall were very
    close to each other. There was a natural progression from one to the other. In
    his testimony, Mr. La Forest said that Pee Wee and Free Fall were the two
    obstacles most likely to be ridden in tandem. The respondent felt like this
    was the next thing to do as he had done Pee Wee just fine and Free Fall lined
    up behind it and it seemed like the next thing to try (para. 38). The trial
    judge accepted this evidence and concluded:

[307] Suggestions were made by the County that you could turn
    around and ride Pee Wee again and simply by-pass Free Fall by taking the alternate
    paths on either side.

[308] Although these options were available, after carefully
    reviewing the photos of these features, I conclude that they were built in such
    a way that Free Fall was the next logical progression after Pee Wee and that
    coming off of Pee Wee delivered the rider to the start of Free Fall.

(4)

Causation

[53]

The test for causation in a negligence action is the but for test 
    the plaintiff must show on a balance of probabilities that but for the
    defendants negligent act, the injury would not have occurred:
Ediger v.
    Johnston
, 2013 SCC 18, [2013] 2 S.C.R. 98, at para. 28;
Clements v.
    Clements
, 2012 SCC 32, [2012] 2 S.C.R. 181, at paras. 8, 13;
Resurfice
    Corp. v. Hanke
, 2007 SCC 7, [2007] 1 S.C.R. 333, at paras. 21-22.

[54]

The trial judge applied this test and found that the appellant caused
    the respondents injury with respect to the four breaches of the standard of
    care addressed above.

[55]

The appellant challenges all four of these conclusions on causation. The
    appellant submits that the trial judge: (1) assessed causation based on a reasonableness
    standard and not the but-for test; and (2) failed to make actual findings of
    causation. I will consider these challenges but, importantly, I must do so
    under the umbrella of the standard of review enunciated by Rothstein and
    Moldaver JJ. in
Ediger
, at para. 29:

Causation is a factual inquiry (
Clements
, at paras. 8
    and 13). Accordingly, the trial judges causation finding is reviewed for
    palpable and overriding error (
H.L. v. Canada (Attorney General)
, 2005
    SCC 25, [2005] 1 S.C.R. 401, at paras. 53-56).

I also observe, as the appellant acknowledged at the
    hearing, that the appellant can succeed on the appeal only if he demonstrates
    that
none
of the causation conclusions can stand.

[56]

On the warning sign issue, the appellant submits that the respondent had
    to prove that a specific and different outcome would have transpired had different
    signs been posted. However, because the necessary signs were not specified by
    the trial judge and the respondent was not asked about how he would have
    reacted to such additional signage, the appellant submits this could not be
    established.

[57]

I disagree. The trial judge clearly found that the respondents injury
    would not have occurred if more detailed signage had been posted:

[250]  I have little doubt had more detailed signage been in
    place  the decisions made by [Stephen Campbell] would have been different and
    the injuries would not have occurred.



[253] A sign instructing how to reduce or minimize injuries
    when falling would have allowed [Stephen Campbell] to abandon the feature in a
    different manner.



[265] Given that [Stephen Campbell] was at the park primarily
    for the trails, I am satisfied that a more detailed warning sign would have
    impacted [him] and his decision to attempt Free Fall.

[58]

I see no palpable and overriding error in the trial judges findings
    that would warrant appellate intervention.

[59]

On the promotion of the Park issue, the appellant submits that the trial
    judge did not specify how a different warning would have affected the behaviour
    of the respondent. As such, causation was not made out.

[60]

Again, I disagree. The trial judge highlighted the care that the
    respondent and his family took to determine whether to attend the Park:

[173] He and his wife were experienced mountain bikers and
    relied on the promotional brochure, the 1-800 number and conversations with
    tourist representatives in deciding to visit the park.



[287] [Stephen Campbell] and his wife carefully reviewed the
    brochure and even called the 1-800 number.

[288] I am satisfied that like Ian Ross earlier, [Stephen
    Campbell] believed the park was a safe and fun venue for families.

[61]

The trial judge clearly found that the respondents decision to attend
    the park was influenced by the promotion of the park as a family venue.
    Accordingly, it was open to the trial judge to conclude that the respondents
    injuries would not have occurred if the park was promoted more accurately:

[290] In all of the circumstances, I am satisfied that the
    promotion of the park breached the duty of care owed by the County to [Stephen
    Campbell], and but for that breach, the accident and the resultant injury would
    not have occurred.

[62]

On the monitoring risks issue, the appellant submits that the trial
    judge inappropriately associated the Ian Ross incident with the incident
    involving the respondent. The appellant submits there is no basis for finding
    that the municipality would have changed Free Fall in response to an accident
    on a different obstacle.

[63]

In my view, the trial judge was entitled to find that had the
    municipality adequately monitored previous accidents, and been aware of the
    number of accidents at the Park and on Free Fall in particular, actions would
    have been taken that would have prevented the respondents injuries. Given the
    factual nature of the causation inquiry, deference is owed to the trial judges
    conclusion that:

[300] If the County had maintained an effective and complete
    history of injuries and accidents at the park, they would have been in a better
    position to determine whether the wooden features posed a danger, and could
    have taken steps to identify and define the risks of injury or accident by
    users of the park.



[303] I am satisfied that the failure to adequately monitor
    risks at the park breached the duty of care owed by the County to [Stephen
    Campbell], and but for that breach, the accident and the resultant injury would
    not have occurred.

[64]

Finally, on the adequate progression of obstacles issue, the appellant
    submits that there was no basis on which to conclude that moving Free Fall
    farther away from Pee Wee would have prevented the respondent from attempting
    it.

[65]

I do not accept this submission. The trial judge considered the impact
    of having the two obstacles so close together:

[259] They were in tandem. When I examined the photo, it struck
    me that they were built to ride one after the other.



[308] Although the [alternate paths] were available, after
    carefully reviewing the photos of these features, I conclude that they were
    built in such a way that Free Fall was the next logical progression after Pee
    Wee and that coming off of Pee Wee delivered the rider to the start of Free
    Fall.

[66]

Given these findings, I defer to the trial judges conclusion that:

[312] In all of the circumstances, I am satisfied that the
    County has breached its duty of care in failing to have an adequate progression
    of qualifiers, and but for that failure, [Stephen Campbell] would not have
    attempted the feature or sustained the resultant injury.

[67]

In summary, on all four causation points the trial judges analysis is
    far removed from attracting the label palpable and overriding error. The
    trial judge clearly applied the but-for test, and not a standard of
    reasonableness as alleged by the appellant.

(5)

Contributory negligence

[68]

The trial judge held that the respondent was not contributorily
    negligent for the injury he sustained:

[336] In accepting that the risks of Free Fall were not readily
    apparent, I am unable to find fault with [Stephen Campbell] for failing to be
    more capable in his attempts to extricate himself from the emergency situation
    he faced.

[337] I am satisfied that it was the County who created the
    emergency situation which led to the accident and that [Stephen Campbell] cannot
    be expected in the agony of the moment to make a perfect manoeuvre, in this
    case a wheelie, to avoid the accident. The suggestion by the County that [he]
    had ample time to both make an assessment of the situation and decide on a
    course of action is simply not supported by the evidence before me. [Stephen
    Campbell] cannot be criticized or found liable for failing to be more capable
    in his attempt to extricate himself from the emergency situation he faced as a
    result of the actions of the County.

[69]

The trial judges decision on contributory negligence is one of mixed
    fact and law and is entitled to deference, absent a palpable and overriding
    error: see
Waldick
, at 480.

[70]

The appellant challenges the trial judges assessment of contributory
    negligence on three bases.

[71]

First, the appellant asserts that in this passage the trial judge
    focused his inquiry exclusively on the respondents actions in attempting to
    exit Free Fall. The appellant submits that this is too narrow an approach. The
    duty to take reasonable care for ones own safety does not materialize only
    when a situation of peril arises. Rather, the duty extends to the respondents
    decision to try to ride Free Fall.

[72]

I do not accept this submission. Earlier in his reasons relating to
    contributory negligence, the trial judge said:

[334] In finding that the County breached its duty under s.
    3(1) of the
OLA
, I have already concluded that the risks of Free Fall
    were a hazard and not readily apparent. As such, [Stephen Campbell] would have
    lacked foresight of the severe consequences of his behaviour.

[73]

I see no basis for interfering with this factual finding. It explains
    why the trial judge then focused on the respondents thinking and actions once
    he was in peril on Free Fall and not on his prior decision to attempt to ride
    Free Fall.

[74]

Second, the appellant contends that the trial judges conclusion that
    the respondent was not contributorily negligent is inconsistent with his trial
    counsels admission during closing submissions:

THE COURT: So, are you going to give me a percentage breakdown?
    Like, is your breakdown 100/0?

MR. MURRAY: No. I probably should give a range of breakdowns.

THE COURT: Right.

MR. MURRAY: I would suggest pending on the way Your Honour find
    the facts, that at the low end it would be 50 percent; so a 50/50 split.



THE COURT: All right.

MR. MURRAY: And you know, at the higher end I would say 
    because there are some elements with respect to Mr. Campbell, you know, always
    be sure under all circumstances that he knew what he was doing and knew how to
    do it  that it would be comparable to the finding in the water slide case; it
    would be an 80/20 split.



THE COURT: So, I guess the issue is  is, you know, how long or
    how  at what point along the risk continuum is he prepared to place himself.

MR. MURRAY: Mm-hmm.

THE COURT: So, clearly its  its not perhaps zero because he
     hes prepared to accept certain risks and

MR. MURRAY: I would concede that.

THE COURT: he  he wouldnt mountain bike if he wasnt
    prepared

MR. MURRAY: Exactly.

THE COURT: to accept certain risks



MR. MURRAY: Yes. Well, thats why I  I guess I put it at, you
    know, from 50/50 to 80/20 as

THE COURT: Right.

MR. MURRAY: the spectrum.

[75]

The appellant contends that in these passages the respondents trial
    counsel explicitly conceded that, at best, his client should obtain an 80/20
    liability split. The respondents position is that the subject matter of this
    discussion is not the apportionment of liability; the discussion relates to a
    different subject, namely, the respondents own thinking, converted to
    percentages, about how much risk he was willing to assume in engaging in
    mountain biking at the Park.

[76]

I think that both interpretations are possible. In the end, I am not
    prepared to say that trial counsels portion of the discussion with the trial
    judge amounts to a formal admission of some liability. I note that in his
    closing submission, the appellants trial counsel did not claim that the
    respondents trial counsels preceding submission amounted to an admission that
    his client was at least 20 per cent responsible for the accident.

[77]

As well, I observe that trial counsel prefaced his remarks with pending
    on the way Your Honour finds the facts. On the findings of fact as ultimately
    made by the trial judge, the respondent did not contribute to the accident.
    There was no carelessness on his part, either in his decision to try to ride
    Free Fall or in his actions to try to prevent a fall once he was in peril on
    Free Fall.

[78]

Third, the appellant submits that the trial judges conclusion on
    contributory negligence is inconsistent with an observation he made very early
    in the judgment:

[4] [Stephen Campbell] overestimated his ability and
    underestimated his skill required to successfully ride this teeter-totter
    feature known as Free Fall. The consequences arising from his fall were
    catastrophic.

[79]

I do not read this passage in the manner suggested by the appellant. In
    my view, the trial judge was simply observing that, as it turned out, the
    respondent did not have the skill to successfully navigate Free Fall. The legal
    analysis relating to the consequences of the accident emerge in the following
    339 paragraphs.

[80]

In summary, I see no palpable and overriding error in the trial judges
    appreciation of the evidence and conclusion on the issue of contributory
    negligence.

E.

Disposition

[81]

I would dismiss the appeal. I would award the respondents their costs of
    the appeal fixed at $25,000, inclusive of disbursements and HST.

Released: May 17, 2016 (D.D.)

J.C. MacPherson J.A.

I agree. Doherty J.A.

I agree. B.W. Miller J.A.


