There is significant case law which suggests that a public
authority has a legal duty to place relatively sturdy guard rails
upon a bridge in order to ensure that those using the bridge will
not confront a risk of falling into the body of water below the
bridge. We refer in particular to Dionne v. New Brunswick (1968)
1 N.B.R. (2d) 11 (Q.B.); Harper v. Bruce (1950) 2 D.L.R. 68 (Ont.
C.A.); Hastings v.Clinton (1924] S.c.R. 195. Against this, we
intended to argue at trial that Council as a matter of policy bac..
in 1982 (when the original bridge was replaced) had consciously
decided to install the Bailey Bridge rather than a bridge of a more
permanent nature, and that this consequently absolved the City from
any liability in negligence. We believe that such defence had a
petter than even chance of succeeding. However, due to the lack
of specific discussion in the 1982 Council meeting (of which we
had a tape recording) concerning bridge guard rails, we estimated
there to be a 30% probability that this defence would not succeed.

Ownership of Bridge

You will recall that in exchange for the agreement by the City to
indemnify and defend that provincial Crown after it had been added
by Ms. Boutcher as a defendant to the action, the Ministry agreed
to leave the bridge in place for a minimum period of five years.
Enclosed for the City’s records is a copy of a letter to this
effect dated March 15, 1990 which we received fron Thomas
MacLachlan, solicitor with the Ministry of the Attorney General.

Bridge Modification

We understand that since Ms. Boutcher’s accident in December, 1987,

steel guard rails have in fact been installed on the Bailey Bridge.

While these were in fact installed in an effort to pretect the
integrity of the bridge members, it seems clear that those guard
rails would also serve to keep an out-of-control automobile on the
cridge path, thereby avoiding the risk of drowning which the
=Sence of those guard rails would present.

at the same time, the metal guard rails have not been extended so
as to include the wooden approach ramp at the western end of the
Bridge. We recommend that the Municipality extend the existing
guard rails so as to include the wooden approach ramp. If Council
is disinclined to do so, we recommend, as a minimum measure (which
we cannot guarantee will insulate the City from potential
liability) that Council specifically pass a policy resolution
deciding not to expend funds upon the Bailey Bridge by extending
the guard rails to include the wooden approach ramp, and to resolve
against expending any funds to install a decking material which
might provide greater traction than the existing wooden bridge

deck.