A Hamilton court has ruled in favour of an 89-year-old woman who slipped and fell on a 23.8 millimetre bump in the sidewalk, a gap that earned her — and cost the city — $192,000 in damages.

Citing a City of Hamilton worker as a hostile witness, missing inspections for a stretch of sidewalk on Upper Sherman and a city policy to repair raised edges in sidewalks over 19 millimetres, Justice Stephen Glithero said the municipality "failed" in its responsibilities, leading him to find the city "legally accountable."

According to a decision filed with the courts on June 8, Blanch Worthey broke her left wrist as well as her hip, requiring a total hip replacement, in a fall outside her Mountain home on September 13, 2012.

Lawsuits against the city for slips resulting from cracks in sidewalks are nothing new. They cost the city more than a million dollars in damages in 2012, a year the city paid out 71 of 842 stumble claims. That doesn't include falls because of ice, which resulted in 19 claims. In total, the city paid out $2.5 million in liability claims in 2012 alone, leading a city solicitor to ask the province to change the law.

According to the decision, the previously independent and able-bodied widow of 30 years spent at least 42 days in hospital because of the fall. Glithero said Worthey testified that she "admits to paying no particular attention to the sidewalk as she traversed it," but that the city would not have been liable if they took steps that "need only be reasonable in terms of both inspection practices and repair practices."

According to Glithero, this is exactly where the city failed.

City failed to inspect, follow its own policy

He noted city policy is to repair sidewalks cracks, bumps and gaps when they are raised more than 3/4 of an inch, or 19 millimetres. By the city's own testimony, it marks gaps of 20 millimetres and over for repairs. The city inspects its 2,832 kilometres of sidewalks once a year using a subcontractor called ABC Enterprises, which in turn employees students to walk the extent of Hamilton's sidewalks reporting cracks to be repaired.

There are inspection records for 2009, 2010, 2011 and 2013, but in 2012, the year of the fall, no record exists.

In addition to the missing record, Ron Mol, a 27-year employee of the City of Hamilton, was described as a "hostile" witness by Glithero, which eroded his credibility. There were also questions about the equipment used to measure the gaps — a ruler that was broken on one edge with a bolt and wing nut assembly that could lead to an inaccurate measurement if the bolt was loose.

Evidence from victim's son, courthouse guard, favoured over city inspector's

Following the fall, Mol spent two minutes at the site taking photographs of the crack on Upper Sherman, which he measured at 5/8 of an inch, roughly 16 millimetres.

"I was not impressed with the evidence of Mr. Mol, as he is obviously biased in favour of his employer, and unreasonably defensive and resistant when asked any questions that he perceived to be contrary to his position or interests, or those of his employer," Glithero wrote.

"He was openly hostile with counsel. The manner of his presentation lacked impartiality. Mr. Mol's opinion is that he is right because he says so, and that he says so because he is right. His rigidity and defiance undermine his credibility."

That hostility led Glithero to accept the evidence on the size of the gap from Douglas Worthey, the 61-year-old son of the victim. He measured it at 15/16 of an inch (23.8 millimetres) using a carpenter's square. He was a forensic pathology worker at the former Henderson Hospital. He is currently a special constable at the John Sopinka Courthouse, where the case was heard.

Taking the victim's son's evidence as fact, Glithero noted in his decision that the city has policy to repair gaps over 19 millimetres, that they didn't inspect the year of the fall, and that the city had yet to repair the gap when the issue was heard in court, in May 2015.

Both sides agreed on damages of $275,000. Gilthero noted that the city was not on the hook for the full amount, saying Worthey was "contributorily negligent" for 30 per cent of the damages.