July 21st, 2016
Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for profound injuries after a plaintiff fell two stories after falling while swinging from a corroded lamp-post.
In this week’s case (Mackey v. British Columbia) the Court summarized the facts as follows
On March 31, 2007, when David Mackey was 17, he climbed onto a concrete baluster. The baluster formed part of a railing along the perimeter of a pedestrian plaza at 812 Wharf Street, overlooking the waterfront, in Victoria. On the baluster stood a lamp post. It was about 6 feet tall. David Mackey swung around the lamp post. It was corroded to the core. When David Mackey swung around it, the lamp post came loose. It tottered, and he fell two storeys onto the concrete walkway below. He suffered severe traumatic brain injury.
The Court found the injury caused profound disability and awarded damages assessing a lifetime of earnings and care totaling nearly $6 million.
The court reduced this amount by 65% to account for the Plaintiff’s contributory negligence. In finding the Province 35% and the Plaintiff 65% for the incident Mr. Justice MacIntosh reasoned as follows:
 From the evidence above, I reach the following conclusions.
 The lamp post was severely corroded when David Mackey fell. The lamp post had never been inspected or maintained to see that it was intact. The annual painting did little or nothing to protect it because the corrosion was allowed to continue unchecked, both under the skirt and immediately above it. Further, the skirt of the lamp post was never bolted to the baluster, which would have provided the necessary support.
 But for the corroded state of the lamp post, and but for the skirt not having been bolted, I find that the accident probably would not have happened. What probably happened was that as David Mackey was swinging around the lamp post, the lamp post came loose and gave way. Probably, the lamp post coming loose and giving way caused David Mackey to fall to the concrete walkway below. I adopt here what McLachlin C.J. wrote for the majority at paras. 9 and 10 in Clements v. Clements,  2 S.C.R. 181:
 The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury. [Citations omitted.]
 A common sense inference of “but for” causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss. [Citations omitted.]
 Also, however, it is obvious that but for David Mackey getting up on the baluster, and swinging around the lamp post, the accident would not have happened…
 When applying the provisions of the two statutes, the Occupiers Liability Act and the Negligence Act, as they have been considered in Cempel, Bendzak, Sall andPaquette, cited above, I find the PCC to be 35% at fault and David Mackey to be 65% at fault for the accident. David Mackey was nearly 18. He mounted a safe railing where there was a dangerous drop below. He had probably also heard Ms. Arner’s warning to Ryan Ramsay. On the other hand, the PCC had neglected entirely the adequate, or indeed any, maintenance of the lamp post, apart from subcontracting an annual paint job. The lamp post, on top of the railing, was its own accident waiting to happen. As noted earlier, it could have been pushed over by a force of only 12.5 pounds.