Safe Tobogganing
Having spent many happy childhood hours tobogganing in Toronto, I probably wasn’t the only one relieved to hear Mayor John Tory compare a prospective ban on tobogganing to a ban on fun. Days earlier, I had purchased a new Ski Doo® Snow Moto sled for my son. It is fully equipped with front flex suspension, snow brakes, and the coolest snow racing decals I’ve ever seen. My son and I had a blast tobogganing down local hills with other children, with the happy sounds of little ones laughing in the background. My son wore a helmet with a full visor, and I’m happy to say it did not detract from his fun.
In early January, news broke across the continent about various municipalities that were instituting broad bans on tobogganing. The CBC reported that Hamilton has already banned tobogganing on all municipal property, with fines of up to $5,000.
Tobogganing involves some risk. The National Post reported recently that seven people were killed in Canada while tobogganing between 2003 and 2007, though there is a lack of data and information on the subject. In 2013, the City of Hamilton entered into a $900,000 settlement with an adult who suffered a spinal cord injury while tobogganing on a municipal hill – despite the tobogganing ban. Multi-million dollar awards have been granted in the United States in suits commenced against municipalities due to catastrophic injuries suffered on their hills. No doubt, municipalities wish to take steps to limit their risk of exposure to expensive law suits and increased insurance premiums.
Risk is inherent in everything. It can be managed but not eliminated. It is reasonable that all parties take steps to make tobogganing as safe as possible. Responsible restrictions or prohibitions of tobogganing on dangerous hills (for example with trees or other obstacles) make sense. So does removal of the obstacles. Parents can take steps to protect their children as well. Supervision is important. Helmets should be worn. The hills should be appropriate to a child’s level of ability, and scanned for obstacles or dangerous conditions.
The lawsuits relating to tobogganing have served a valuable purpose in that they have encouraged municipalities and parents to take reasonable precautions to prevent injury. This is one of the primary purposes of personal injury law. Bans on tobogganing are not a substitute for taking reasonable precautions. Further, it is doubtful that bans, in the absence of reasonable precautions, will protect municipalities from liability in any event. Moreover, it would be unfair to externalize, onto our children, the costs of failing to take reasonable precautions to protect them in what should be a safe and thoroughly enjoyable Canadian activity.
