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Don’t make tobogganers pay for liability chill

Screaming down a snowy hill on a sled, a Krazy Karpet, or an inner tube is one of the unbridled joys of Canadian winter.

But, increasingly, municipalities are restricting or banning tobogganing.

Is this sucking the fun out of childhood justified?

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Of course not, at least not on safety grounds. While tobogganing is a "high-risk" activity (meaning a lot of kids get hurt), the risks can be mitigated.

What is more difficult to contain is the voracious appetite of personal injury lawyers and the financial fearfulness of cash-strapped municipalities.

In fact, while helicopter parents and overly cautious public health officials often get blamed when ridiculous bans on tobogganing, road hockey, skateboarding and the like are instituted, the real culprit is a torts system that has lost touch with reality.

The recent spate of "war on tobogganing" stories emerged after the City of Hamilton posted signs at popular sledding spots warning that the activity was prohibited and violators could be fined.

This prompted a backlash, including a petition and a catchy protest song by Laura Cole, You Can't Toboggan In The Hammer Any More.

Hamilton's bylaw, however, has been in place for 40 years, in response to a lawsuit in the early 1970s when someone was injured tobogganing on city land. The bylaw was never enforced but the city posted warning signs in response after losing a second lawsuit, in which a local lawyer was awarded more than $900,000 after suffering a spinal injury while sledding at a city reservoir.

This kind of award, while rare, has created a liability chill, and children are paying the price by being frozen out of winter fun.

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Canada's legal environment is becoming increasingly like the U.S., where everyone is risk-averse for fear of being sued, and the easiest thing to do is ban activities.

We should also have a legal regime where there are individual and collective responsibilities, and where there is a better balance of rights and responsibilities.

The benefits of being active far outweigh the risks. As a society, we should aim to make activity – especially outdoor activity – easy, accessible and relatively safe.

Instead of chasing kids and their parents away from popular sledding hills, what municipalities should be doing is trying to attract them to safe spots, by grooming hills, and installing lighting and public bathrooms.

At the same time, there should be an obligation on behalf of those using public facilities like sliding hills, playgrounds and beaches to use them responsibly.

The approach of the injury prevention group Parachute Canada is the right one. They actually urge kids to "get outside – have fun on the hill" but, when doing so, to take some common sense precautions.

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First and foremost, if you're going hurtle down a hill – be it on skis or a sled, or skating for that matter – you should wear a helmet. The greatest danger in falls and crashes is to the brain, so it should be protected.

You should also pick your hill wisely. Almost all sledding injuries occur when someone hits a stationary object; a good sliding spot should be free of obstacles such as trees and rocks, should not have a road or river at the bottom, and it should be snowy, not icy.

Parental supervision, especially of young children, is important. But that doesn't mean hovering over kids at every instant. And when you create safe spaces – rather than pretending, for example, that every sliding hill is dangerous – it is much easier for parents to give children more freedom to have fun.

Children should always ride in a sitting or kneeling position because it makes a toboggan easier to steer. Young (and not-so-young) adults should be aware that many of their tobogganing injuries occur when there is excess alcohol consumption.

It's also important to retain some perspective. Children today are safer than they have ever been, but a childhood well lived cannot be entirely risk free.

The greatest risk of death and injury, by a long shot, comes when children are in or near motor vehicles, not when they are tobogganing in public parks.

When we demonize marginally perilous activities like sledding, we do our children and ourselves a grave disservice.

When we fashion public policies based on fear – of litigation or otherwise – we create a slippery slope to a place where the greater good is undermined and where public spaces, for all intents and purposes, lose their meaning and their value.

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About the Author
Public health reporter

André Picard is a health reporter and columnist at The Globe and Mail, where he has been a staff writer since 1987. He is also the author of three bestselling books.André has received much acclaim for his writing. More

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