Category Archives: Legal Expertise

Slip and Fall Accidents

When you injure yourself in a slip and fall accident, you want to be able to get the help you need. With medical bills and job responsibilities looming over your head, it is essential that you get back on your feet as soon as you can. Falls are the leading cause of injury in Canada, and 50 percent of adolescents, 63 percent of seniors, and 35 percent of adults suffer an injury when a fall occurs.

Falls happen at home, in the workplace, and around town. They can result in broken bones, and lead to you or a loved one losing time at work and income that you depend on. If you are involved in or hurt in a fall, it is important to gather evidence at the scene. Take photos of the area where the fall took place and identify any witnesses that may have seen or heard the accident. Be sure to contact a slip and fall lawyer as well, to learn about your legal options moving forward.

slip and fall info graphic

 

The Effect of Social Media on Insurance Disability Claims

It is no longer a secret that insurance companies are searching for that “smoking gun” on social networking websites to refute injury and disability claims. Indeed, what better refutation is there than a photograph showing the insured engaging in an activity inconsistent with the injury or disability which they allege? However, what few know is that even if the insured’s social networking profile is supposedly private and accessible only to friends or persons in their network, an order for disclosure of the full social networking profile to the insurance company’s lawyers may sometimes be made. Unfortunately, case-law provides no clear guidance on when such an order will be made. In this regard, some cases have indicated that the mere discovery of a social networking profile may be sufficient evidence that relevant information exists for purposes of compelling discovery, while other cases take a much more restrictive approach and only order production where the public areas of the social networking profile provide “hints” that a more extensive search will reveal further evidence. The test in all matters appear to be relevance. Put differently, “there must be evidence that posted photographs are relevant in order to justify an order for production”. (Knox v. Applebaum Holdings Limited, 2013, ONSC 7895, 2013 ONSC 7895 (CanLII) at para 18). Some cases have suggested that social networking profiles are presumptively relevant to claims based on personal injury or disability. Thus, in Leduc v. Roman, 2009 CanLII 6838 (ON SC) at para 32 it was held by the Ontario Superior Court of Justice that: “A party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly-available profile. Both are obliged to identify and produce any postings that relate to any matter in issue in an action. Master Dash characterized the defendant’s request for content from Mr. Leduc’s private profile as “a fishing expedition”, and he was not prepared to grant production merely by proving the existence of the plaintiff’s Facebook page. With respect, I do not regard the defendant’s request as a fishing expedition. Mr. Leduc exercised control over a social networking and information site to which he allowed designated “friends” access. It is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc has been able to lead his life since the accident.” This approach was also followed in Murphy v. Perger, [2007] OJ No 5511 (SCJ): “It seems reasonable to conclude that there are likely to be relevant photographs on the site for two reasons. First, www.facebook.com is a social networking site where I understand a very large number of photographs are deposited by its audience. Second, given that the public site includes photographs, it seems reasonable to conclude the private site would as well.” In other cases, the courts have taken a “judicial peak” at the information on the social networking site to determine if they are relevant, without allowing the defense. Where the court’s own review revealed no relevant photographs, the court declined production on privacy grounds: • Stewart v. Kempster, 2012 ONSC 7236 (CanLII): The Ontario Superior Court of Justice refused production of the plaintiff’s Facebook account where the plaintiff claimed that she was unable to participate in recreational and social activities to extent that she had before accident. The court reviewed the images (without the defense being able to see them) and held that the photographs did not show the plaintiff engaging in any athletic activity beyond sightseeing. The court further held that a request for production of all content of a private portion of a Facebook account is shockingly intrusive, especially where the claim for production was based on nothing more than speculation. • Garacci v. Ross, 2013 ONSC 5627 (CanLII): The Ontario Superior Court of Justice refused production of the plaintiff’s Facebook account where the plaintiff alleged that she suffered injuries to her left leg and ankle including a fracture of her left ankle. The court conducted a random review of the pictures and determined they were not relevant as they did not reveal “any significant physical activity” by the plaintiff. The relevancy test appears to have also been adopted in cases before the Financial Services Commission of Ontario (FSCO) and no automatic right of access has been found to exist. In this regard, in Rakosi v. State Farm Mutual Automobile Insurance Co. (2012), 2012 CarswellOnt 7066 (F.S.C.O. App.) it was found that Facebook pictures were not prima facie producible, but the test was still one of relevance. In that case, production was ordered where the claimant had posted pictures of himself zip lining on a public Hi5 profile and these pictures were found to be relevant to the issues in dispute. It was found that, “I see no error in extending the inference from unrestricted access documents on one site to restricted access documents on a similar site”. The FSCO has also refused production on at least one (1) occasion. In this regard, in Prete v State Farm Mutual Automobile Co, 2011 CarswellOnt 1019 (WL Can) the FSCO found that the public profile of the claimant contained no relevant photographs and therefore a proper evidentiary basis did not exist to order disclosure of the private profile. It therefore appears that relevance is the guiding criteria in determining whether production will be ordered of social networking profiles in personal injury cases. In determining relevance, regard will be had to factors such as (a) the nature of the claim and alleged injury or disability, (b) the existence of evidence on the public profile which “hints” at relevant information existing on the private profile, and (c) the court or arbitrator’s own review of the private information to determine relevance.

Pastore v Aviva Canada Inc. (2012) – Catastrophic Impairment

Pastore v Aviva Canada Inc (2012) is the latest in a trilogy of cases by the Ontario Court of Appeal relating to the important definition of catastrophic impairment. The court ruled that only one marked or extreme functional impairment due to a mental or behavioral disorder is necessary to qualify accident victims for enhanced catastrophic impairment benefits. While personal injury lawyers and those affected both mentally and physically by their injuries applauded the decision, insurers have perceived it as an overall loss in their attempt to raise the ‘catastrophic impairment’ threshold.

Facts

The appellant Ana Pastore (Pastore), was hit by a car while crossing the street in 2002. Her injury was a fractured left ankle that gave rise to complications and surgeries over the span of five years due to not healing properly. In addition to the ankle surgeries, her knee had to be replaced when ankle pain led to a change in her gait. The injury to her ankle had a great impact on Pastore’s life. Prior to the accident, Pastore was described as an active and self-sufficient matriarch, who was the primary caregiver to her husband of 38 years who was undergoing chemo-dialysis at the time. The accident significantly reduced her mobility, and she was no longer able to do housekeeping or participate in recreational activities. She became almost completely dependent on others for her basic personal care needs. In May 2005, Pastore filed an application with her insurer Aviva Canada Inc. (Aviva) to have her injuries designated as causing a “catastrophic impairment”, which allowed her to qualify for significantly enhanced Statutory Benefits Act Schedule – Accidents on or after November 1, 1996, O. Reg. 403/96 (SABS) benefits.

Pastore was assessed for catastrophic impairment at a Designated Assessment Centre (DAC) by a team that included a physiatrist, a psychologist, a psychiatrist, and an occupational therapist. The assessment by the DAC was carried out by reference to the American Medical Association’s Guide to the Evaluation of Permanent Impairment (the Guides) that set out a three-stage test for evaluation of catastrophic impairment based on mental disorder using four categories of functional limitation and five levels of dysfunction. The first stage is a diagnosis of any mental disorders, followed by a second stage where the impact on daily life is identified. The final stage assesses the extent of the limitations by looking at four categories and determining their levels of impairment. Proving most relevant in this case was the court’s focus on limitations regarding activities of daily living; social functioning; concentration, persistence and pace; and deterioration or decompensating in work or work-like settings.

The four categories are then each assessed based on the following levels of impairment: Class 1 – no impairment; Class 2: mild impairment which is to say that “any discerned impairment is compatible with most useful functioning”; Class 3: moderate impairment, which “means that the identified impairments are compatible with some, but not all useful functioning”; Class 4: market impairment, which is “level of impairment that significantly impedes useful functioning”; lastly Class 5: extreme impairment, which “preclude(s) useful functioning”. Relying the required five-level scale, the DAC came to the conclusion that Pastore had a catastrophic impairment consisting of a marked impairment in her daily activities due to mental or behavioral disorder under s.2(1.1)(g) (currently section s.3(2)(f)). With relation to the other three points, she qualified as having only moderate impairment in that she had some, but not all, useful functioning. However, as later contested by Aviva, the DAC found that one marked impairment was enough to qualify Pastore as having suffered a catastrophic impairment.

Findings

Disagreeing with the DAC findings, the parties engaged in an arbitration process under s.282 of the Insurance Act. Aviva put forward two issues to the Financial Services Commission of Ontario (FSCO) delegate: (i) does the then s.2(1.1) (g) of SABS require an overall assessment of marked impairment in all four categories of functional limitation in the Guides, or can marked impairment in one category result in a finding of catastrophic impairment; and (ii) was it an error for the DAC assessors to include physical pain in the assessment of mental disorder in order to comply with the American Medical Association’s Guides to the Evaluation of Permanent Impairment?

The FSCO delegate’s decision that was overturned by Ontario Divisional Court and then reinstated by the Court of Appeal was found to be reasonable given the facts. With regards to the first issue, her conclusion that the word “a” in s.2(1.1)(g) of the SABS could be interpreted in its ordinary meaning as per Oxford Dictionary. This meant that the section required only a single function from the Guides to be at the marked impairment (class 4) level in order to qualify as catastrophic impairment, a decision the Court of Appeal agreed was certainly within the range of possible, acceptable interpretations of the statute.

This finding was contrary to Aviva’s argument that DAC guidelines required overall class 4 impairment for claimant to qualify as catastrophically impaired. The Court of Appeal did admit to the Guides being fairly ambiguous in terms of how many functions need to be impaired in order to be seen as catastrophic but chose to show deference to the delegate in her interpretation of the agency’s governing statute. On the second point, Aviva contended that the daily pain Pastore experienced was a result of the physical injuries to her ankle and knee and as such should not be included as “due to” her mental disorder. The delegate reviewed evidence from doctors found Pastore had Adjustment Disorder with Depressed Mood and was indeed a significant factor in her chronic pain issues. Once again, the delegate referred to the Oxford Dictionary meaning of “due to” which included “because of, owing to” to form her interpretation, one falling within the reasonable range according to the Court of Appeal. Pastore’s final mental disorder diagnosis was “Pain Disorder Associated with Psychological Factors and General Medical Condition”. Since the mental disorder did involve pain along with pain associated with general medical condition, it was surely reasonable to include pain from the general medical condition to the extent that such pain was connected with a diagnosed mental disorder

Analysis

As Brian Cameron, Intervener and Counsel for the Ontario Lawyers Association had stated, the decision “should not have taken five hearings over several years to determine that ‘a’ means one” as the FSCO arbitrator had so clearly reasoned. It is hard to imagine on any reasonable interpretation of the word “a” that it could mean overall or more than one. The Pastore decision is illustrative of the extent that insurance companies are willing to go through in order to prevent access to the accident benefits system that were designed for people who require health care needs in order to regain some stability in their lives. To suggest that impairment in one aspect of a victims life is not enough for a successful application is troubling. For example, a person with marked impairment within the Guides definition of daily activities is one whose behavioral impairments significantly impede most useful functioning such as cleaning, shopping, cooking, riding the bus, grooming, paying bills or using the telephone to name a few.

If Aviva’s argument had succeeded this would mean that not only must a person face significant impediment with routine activities noted above, but they must also face impediment in social functioning, concentration, persistence and pace or decompensating in work or work-like setting. This means that a person must not only be unable to ride the bus or use the phone, but they must also experience other impediments within the class 4 to 5 designations in order to have a successful application. It is difficult to conceive of a word other than ‘catastrophic’ to describe impediments that limit a person’s ability to do things that people perform on a daily basis without thought – to demand impediments of all aspects of life would be beyond all reason. As such, the Pastore case can prove to be a powerful tool when it comes to standing up to insurance companies and receiving benefits for physical and mental impairments arising from injury. If you feel that you are not receiving the benefits, let the experts at Edson Legal provide you with the help that you deserve.

Knowing Who To Make A Slip and Fall Injury Claim Against

With three major snowstorms already ­this winter and perhaps even more to come, Torontonians know all too well the kind of hazards that melting snow and dropping temperatures can bring. A night out at the restaurant, or a walk to the grocery store can lead to a slip and fall incident and unforeseen lasting injuries. However, knowing who to make a claim against for your injuries is not always an obvious exercise and requires a thorough analysis of the current statutory provisions and common law precedents. Depending on where one sustains their injury, there exist various thresholds of liability that we must consider if a claim is to be successful. In this blog entry, we explore the facts and law as to when a duty of care can arise within the context of private property owners, municipal property, or mixed public and private spaces. Liability of Private Property Owners According to section 3(1) of the Occupiers Liability Act “an occupier of premises owes 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“. This view was reinforced in Waldick v Malcom [1991] when the Supreme Court of Canada expressed that the clear intention of the Act was to “replace, refine and harmonize the common law duty of care owed by occupiers to visitors on those premises”. The court went on to say that the occupier had to make the premises reasonably safe, even if the plaintiff had knowledge of the hazard and its potential dangers. But what exactly entails ‘reasonably safe’ precautions? While circumstances often vary from case to case, Ontario courts have opted for the objective standard with the phrase “system of maintenance” to interpret the facts. In Fragomeni v 108048 Ontario Corp [2006], an elderly man slipped and fell in the parking lot of a funeral home after attending a funeral. The snow from the morning along with the cold conditions created a hazard on the funeral home’s property. While the funeral home contracted its snow removal, the court was quick to find that in spite of their intentions, there was no clear procedure in place between the funeral home and the snow removal company to determine who was responsible for deciding to salt the parking lot. Fragomeni tells us that there must be a ‘system of maintenance’ present if the occupier is to avoid liability, however as Flentje v Nichols [2006] goes on to show us, the mere presence of a system is not enough. In Flentje, a 24-year-old woman slipped and fell in the restaurant parking lot of the defendant’s premises, suffering a broken leg that required two surgeries. The parking lot was snow-covered and slippery at the time of the accident and as the plaintiff alleged, the restaurant was found negligent in their failure to implement a reasonable system of snow and ice removal to ensure reasonably safe premises. The Court allowed the plaintiff’s action, and eventually came to the decision that while the restaurant owner had normally been diligent and conscientious in maintaining the parking lot on his own, his system of maintenance was haphazard and not reasonable for a commercial establishment at the time of the plaintiff’s accident. The Court went on to add that even if the restaurant owner had a reasonable maintenance system in place at the time of the slip and fall, it was not functioning appropriately on the evening of the plaintiff’s accident. The issue of reasonable safety with regards to private property owners tells us that in order for liability to occur, there must first be a ‘system of maintenance’ and second, it has to have been working at the time of the accident. Contacting your Toronto slip and fall lawyer will give you further insight into whether or not you may have a successful claim with regards to this. However, sometimes the failure of a system of maintenance does not necessarily help us determine who stands to be liable. Walkways, storefronts, access points from public to private property often muddy the lines between municipal and private property. Liability for Mixed Private Property and Municipal Sidewalks Bongiardina v York (Regional Municipality) [2000] is the leading case on the issue of the duty of care of owners of private property for slip and fall accidents taking place on adjacent municipal sidewalks. In this case, the Ontario Court of Appeal determined that there is normally no duty of care on a private property owner for a slip and fall accident taking place on adjacent municipal property. Even if, as were the facts of this case, there is a by-law placing an onus on the home owner to clear the path, no breach of duty can be found and will amount to little more than a fine. However, there are two major exceptions found in section 1 of Occupiers Liability Act and in the common law tort of nuisance. The Occupiers Liability Act section 1 stipulates that a party will be found to be an occupier where the person has “physical possession of the premises”; “responsibility for and control over the condition of the premises”; “responsibility for control over the activities carried on in the premises”; or “control over persons allowed to enter the premises”. This means, that in order to be identified as an occupier of municipal property, one must go out of their way to exercise control over the sidewalk in question (typically retail storefronts) or must assume exclusive (or near exclusive control) over the people entering on or off the sidewalk (clubs, bars, sport arenas). First, the case of Bogoroch v Toronto (City) (1991) is a classic example of how private property owner may be deemed to have physical possession of neighboring municipal property so as to make themselves an occupier for the purposes of the statute. The facts of the case describe a retailer that had readily placed signs and materials on the sidewalk to induce people to come in as they walked along. The store had even obtained a permit to use a certain portion of the sidewalk for such a purpose. The main issue of the case was whether the store was an occupier with respect to the entire sidewalk, or whether its duty was limited to the area under the permit. The Court decided that store liability applied to the entire sidewalk as the sidewalk was often used as an extension of the store itself, thus fulfilling the requirement of physical possession, as per section 1 of the Occupiers Liability Act. The permit was also instrumental in the Court reaching its decision, but it alone is not indicative of an intent to control. Some active exploitation of the sidewalk beyond mere incidental use is typically needed. Second, the case of Moody v. Toronto (City) (1996) facts included a municipal sidewalk used exclusively by patrons entering the Rogers Centre for sporting events. Based on this near-exclusive use, the fact that a number of Rogers Centre patrons had no alternative but to use the walkway and the fact that the number of people at the beginning and end of an event would make it impossible for a patron to watch for hazards on the walkway. Here, the court held that the Rogers Centre had “sufficient control over patrons allowed to enter the walkway” to be classified as an occupier. To differentiate with Bogoroch here the issue was not that the defendant had physical possession of the sidewalk, but rather that it exercised “control over patrons” and as such fell under the fourth definition of occupier as stipulated by the Occupiers Liability Act. Whether a case falls under the Bogoroch or Moody type fact pattern, the key ingredient to finding that a private property owner is an occupier of the neighboring municipal property would appear to be the purpose for which the property-owner uses the sidewalks. If it is more than just a route used for commuting, then it is unlikely that a duty can be established, but if it can be considered an extension, through owner’s exploitation of municipal property, and almost exclusively for the benefit of the owner, then liability can follow. Lastly, if neither of the fact patterns are present and a duty cannot be established under the Occupiers Liability Act, it may be prudent to turn to the common law tort of nuisance as first established in Rylands v. Fletcher (1868). The principles in this English case have been used and applied with some imagination by the courts of Canada. In Brazzoni v. Timmins (City) (1992) the neighboring TD Bank was found liable for a slip and fall accident on a sidewalk touching its property on the basis that water runoff from melting now on its roof and parking lot ran across the sidewalk creating a dangerous situation that the court concluded it knew or ought to have known was a hazard to pedestrians using the sidewalk. Applying an almost strict liability approach to the matter, the Ontario Court of Appeal found that negligence is not a pre-requisite for finding liability based on a nuisance of this type. However, issues of knowledge and foreseeability in cases that followed such as Simmons v. Etobicoke (City) (2002) have challenged the Ontario Court of Appeals strict liability approach in Brazzoni, and as such has caused a bit of a stir when it comes to attributing liability to runoff water. It’s best to consult your expert slip and fall Toronto lawyer to see where your case stands. Municipal Property Pursuant to section 44(9) of the Municipal Act 2001, the hurdle for a plaintiff trying to sue a municipality is quite high. Generally, the municipality is not liable for a personal injury caused by snow or ice on a sidewalk unless it was through gross negligence. The test for gross negligence can be found in the case of Cerilli v Ottawa [2006], where the court asks three things.

  1. Did the city have actual knowledge of the unsafe conditions?
  2. Can knowledge of the unsafe condition reasonably be imputed to the city?
  3. Did the city have a reasonable opportunity to remedy the unsafe condition?

This means that the determination of gross negligence is in fact highly sensitive and easily countered by good faith and effort to enforce a system of maintenance. Cases that were successful in finding gross negligence share a fact pattern in which the city has become aware of a danger (over a period of several days) and did nothing to remedy it. Particularly where there has been a blatant disregard for maintenance standards/programs and will be exacerbated where the area of ice/snow accumulation is located in a high traffic pedestrian area, such as in a city’s downtown core. With such a high threshold to meet, plaintiffs and defendants turn to co-defendants (typically private owners) or nuisance torts to seek compensation for their injuries. Consulting your expert Toronto slip and fall lawyer for the appropriate strategy in municipal cases is key to a successful claim.

Tips On Finding a Reputable Car Accident Lawyer in Toronto

When injured in an automobile accident, it is vital to seek full compensation for damages incurred. Always have in mind that this does not only involve those parties at-fault in the accident, but also, the insurance companies. Sometimes, one may not be responsible for the misfortune and thus might take legal action against those liable to compensate for injuries and losses incurred. In this case, you will need the help of a reputable car accident lawyer in Toronto to help with the court processes. There are various qualities that make a reputable attorney. In Toronto, there are many professionals in this field but not of them will offer the expected results. It is thus important for those in need to interview several professionals and find out if they qualify for the task. Have in mind that you will be dealing with personal injury attorneys as such cases lie in this category. Some of the damages those involved in such accidents will claim compensation for include physical and emotional pain or suffering, loss of income and others. Those seeking a car accident lawyer in Toronto need to realize that their injuries need be severe and permanent. In most cases, court will require your attorney to prove this even before they can pursue the claims. Always go for those lawyers with proper training and experience in the field. You can ask them to show their academic credentials or other certificates to prove their qualified. In addition, you can ask details about other cases of such kind they have handled before and their success rate. With an experienced attorney, you increase your chances of success with the lawsuit and get results within a short period. Find out if they hold valid licenses to practice in this field. Do not work with an attorney without proper registration and certification to trade in the specific area your cases falls. You can also ask if they are members of any professional organization. In addition, make sure they have no pending disciplinary cases with authorities or relevant bodies like the Law Society of Upper Canada. Look for the car accident lawyer in Toronto who will give personalized service. Each individual has different needs and their cases should be dealt with uniquely to attain a satisfactory solution. A good lawyer will listen to their client keenly and ask questions to understand the case. They should also be open and able to communicate any information to the client clearly and in good time. Clients are free to ask the attorney to give their opinion of the case. It is important to ask about the legal charges in your first consultation with the attorney. Once they have an overview of your case, they should give an estimate of the cost for their services. Seek to know the details of the amount they quote. Details about what service is inclusive in the package, when to start paying and number or amount in each installment should be clear to you. Another important factor to consider in your choice of an attorney is their case strategy. Clients need to know how their representatives want to go about the lawsuit and be satisfied with the plan. Of course, a lawyer will put their best to a lawsuit if they have the right valuation. Make sure your hired professional understands your situation properly, has the right valuation and adopts a suitable strategy. Every reputable car accident lawyer in Toronto owes their esteemed client such level of service.

Toronto Slip And Fall Lawyer

According to the Workplace Safety Insurance Board, slips, trips and falls account for some 20 percent of all injuries in Ontario each year. While they can cause serious injuries, they do not seem to be a high priority for either accident prevention consideration or on-the-job health and safety education and training. The Canadian Centre for Occupational Health and Safety estimates that approximately 60,000 workers are injured each year due to slip and fall accidents, accounting for 15 percent of lost-time injuries that are accepted by workers’ compensation boards across the nation. In addition to workplace slip and fall accidents and injuries, many more people sustain injuries with falls in public places, such as city streets, municipal buildings, stores, malls, restaurants, theaters and even, hospitals. Your Toronto slip and fall lawyer will help you. Many factors contribute to the cause of falls, but the majority are caused by obstructions, uneven or improper floor surfaces, wet and slippery floor surfaces, or the action or inaction of others. Canada’s climate leads to additional risks, as wet leaves, snow and ice add to hazards and significantly increase the risk of trip and fall accidents, both indoors and outdoors. Common injuries include fractured hips, broken bones, musculoskeletal injuries, back injuries, head injuries and brain trauma, and some incidents result in death. With the average slip and fall injury costing approximately $22,000 in direct and indirect costs, it makes sense to consult a Toronto slip and fall lawyer and seek compensation, if you have sustained such an injury through no fault of your own. Local municipalities, businesses and owners of private property are all responsible for ensuring the safety of those people who are on their property. This means that they must make all possible efforts to minimize injury risks.

Your Toronto slip and fall lawyer will help you to determine if you have a viable case to litigate. Slip and fall injuries fall into four general categories

 

  • A person loses traction and slips and falls as a result. This is known as a “slip and fall” incident
  • A person stumbles over an obstruction and falls. This is known as a “stump and fall” incident
  • A person loses balance and falls due to an uneven surface or hole in the floor surface. This is known as a “step and fall” incident.
  • A person trips over a foreign object and falls. This is known as a “trip and fall” incident.

Regardless of the cause of the injury your Toronto slip and fall lawyer is to prove that the owner of the property is liable for the accident and your injuries. He must do this by demonstrating that the owner acted negligently, did not demonstrate reasonable care or had constructive notice of the unsafe condition that was the cause of the accident. In law, constructive notice means that even if the owner was not actually aware of the hazard, it is plausible to assume that he should have had knowledge of it.