Sutton Farms is a family farm located on both sides of the Napanee River. For convenient access to fields on both sides, a bridge was constructed over the river. The bridge was made of steel beams spanning the river covered with wood decking. The steel beams were spaced such that the total width of the beams was ten feet. The wood decking was sixteen feet wide, meaning that three feet of the wood decking on either side of the bridge was unsupported by the steel beams.
Sutton Farms hired TCO Agromart to perform custom spraying of cornfields on both sides of the river. As he was crossing the bridge, the driver of the sprayer veered slightly to the right, bringing one of the tires onto the non-load bearing portion of the bridge. The wood decking gave way, and the sprayer fell off the bridge into the river. The driver was not seriously injured, despite being briefly trapped underwater in the sprayer; however, the sprayer was badly damaged.
The Trial Decision
TCO Agromart’s insurer brought a subrogated action against Sutton Farms, the occupier of the premises, to recover amounts it had paid out on the resulting claim. Sutton Farms defended, arguing that the accident was caused by the negligence of the driver in veering off the centre of the bridge, an event that was not foreseeable or preventable.
The trial judge found that the factual cause of the accident was twofold: (1) the sprayer driver veering slightly to the right onto the unsupported overhang; and (2) the absence of steel beams to support the overhang. She did not find that the absence of warnings was a factual cause of the accident, as the driver knew that he should stay in the centre of the bridge, so such a warning would not have prevented the accident.
The trial judge also found that it was not reasonably foreseeable that the driver would drift to the right side of the bridge, as it was a private bridge used primarily by skilled operators of heavy farm equipment. The bridge had been used frequently for many years without incident. She concluded that the factual and legal causes of the accident were not related to the design, maintenance, or upkeep of the bridge, so Sutton Farms had not breached its duty of care. As such, the action was dismissed.
The Court of Appeal
On appeal, the Appellant took issue with the trial judge’s failure to make any findings with respect to the standard of care, as well as the way the duty to warn was defined.
It was undisputed at trial that there was no warning of any kind with respect to the danger posed by the bridge, either by signage or direct communications. The court concluded that the trial judge had erred by deciding that because signage would not have prevented the accident, it was not required to meet the standard of care. The standard of care is the standard that the occupier owes to all users of the bridge, not only the particular injured party. That following this standard would not have prevented an accident in the present case does not mean that the standard was not breached.
The trial judge was also found to have erred by concluding that the duty to warn was limited to a warning to stay in the centre of the bridge. The duty to warn in this case required disclosure of the nature of the hazard: that the three feet on either side of the bridge were unsupported. It was only with knowledge of this information that the driver could have made an informed decision of whether to accept the risks of crossing the bridge. By considering the driver’s evidence that he knew to stay in the centre of the bridge as a matter of common sense in light of the improperly defined duty to warn, the trial judge had incorrectly concluded that a warning would not have prevented the accident.
The trial judge also erred in her finding that the damages were not reasonably foreseeable. This finding was based on the fact that the driver knew to stay centred on the bridge due to common sense. However, even where an experience driver knows to stay centred on a bridge, it is reasonably foreseeable that they may veer slightly off centre while driving heavy machinery. This was evidenced by the testimony of the owner of the property that he chose to use an alternative bridge when operating wide equipment. The risk was not only reasonably foreseeable but was in fact foreseen.
On this basis, the Court of Appeal allowed the appeal and awarded damages in favour of TCO Agromart.
Key Takeaways
This decision provides a helpful clarification of the scope of the duty to warn. Where danger is posed by a hidden hazard, it may not be enough to merely warn of how to avoid the hazard. Rather, disclosure of the specific nature of the hazard is necessary to allow an individual to make an informed decision about whether to accept the risk.
See TCO Agromart Ltd v Sutton Farms (Nacona) Ltd, 2026 ONCA 371 (CanLII), https://canlii.ca/t/kl5rr
