July 1, 1962, was a warm summer day in Toronto, Ontario and Elizabeth Smith was standing on

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Question:

July 1, 1962, was a warm summer day in Toronto, Ontario and Elizabeth Smith was standing on the outside concourse of the Toronto Railway Co. station after buying a ticket to go to Niagara Falls, Ontario. While she was waiting for her train, another train stopped at the station, to pick up customers bound for Ottawa, Ontario. As the train began slowly moving again two men ran forward to catch it. One of the men named Edward Tully reached the train car and jumped onto the steps of the platform of the moving train and entered without mishap. The other man named William Johnson, who was carrying a package then jumped aboard the steps platform of the same train car but seemed unsteady when doing so as if he was about to fall. A railway employee on the platform of the train car, who had been holding the train car door open, reached forward to grab his hand and help him in, and at the same time another railway employee on the station concourse roughly "boosted" or pushed him from behind to also help him get aboard the train. In this act, the package being carried by William Johnson was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact, the package contained fireworks intended to be used later on that day, as part of a celebration when Johnson arrived in Ottawa. However, there was nothing in the package's appearance to give notice to anyone of its contents. The package containing the fireworks immediately exploded when it fell onto the rails. The shock of the explosion was so great that it threw down a commercial weight scale located at the opposite end of the train station concourse, many feet away and close to where Mrs. Smith was standing. The scales fell and struck Mrs. Smith, causing significant injuries for which she now sues in a legal action.

1. Name and describe what kind of legal action is likely to be commenced by Mrs. Smith as Plaintiff and who do you think are likely to be the defendant or defendants to this legal action?

2. Identify, discuss and analyze what Elizabeth Smith will need to prove or establish in order to succeed in her case. For this answer, you should assess this case using the 4 questions used by the courts to establish liability in these types of cases. Specifically do you think the railway employee (s) could be liable? Do you think that the Railway company could be liable? Are there any other parties who could be liable? Please fully describe and make your decision in this case as to liability

3. What if, during the litigation of this case the facts reveal that the area near the commercial weight scales where Mrs. Smith was standing had a small slightly faded sign posted on the train station wall that said "Unauthorized Area: Railway Company Employees only". How if at all could that affect Mrs. Smith's claim for damages in this case?

4. a) Mrs. Smith's recovery from the injuries and harm suffered in this case takes a longer period of time than would normally be anticipated and it appears to be because she suffers from pre-existing post traumatic stress disorder (hereinafter "PTSD") symptoms relating to a prior car crash incident from two years ago. While her PTSD symptoms from the prior car crush had stabilized this current incident at the railway station triggered a recurrence of the same symptoms which contributed to the length of time of her recovery from this railway station incident. Will this affect the extent of liability or award for damages being claimed by Mrs. Smith? Explain

b) What if at the time of the railway incident Mrs. Smith had not recovered from her PTSD symptoms from the prior car crush and in fact was still experiencing those symptoms at the time of the railway incident? Will this affect the extent of liability or award for damages being claimed by Mrs. Smith? Explain.

5. What steps or actions could the railway company have taken to prevent this incident from occurring?

6. What if, the train ticket that Mrs. Smith purchased had a waiver statement located in small print on the back of the ticket which said "...each railway company passenger assumes all risk of personal injury, death, or property loss resulting from any cause whatsoever including but not limited to the negligence of the railway company and/or its employees". Will this affect the extent of liability or award for damages being claimed by Mrs. Smith? Explain.