ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘Strata Plan VIS3782’

Claim Dismissed Involving Broken Armrest Leading to Hip Fracture

September 18th, 2018

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, dismissing a personal injury lawsuit alleging a breach of the Occupier’s Liability Act.

In today’s case (Hamilton v. The Owners, Strata Plan VIS3782) the Plaintiff broke his hip after falling while leaning on an armrest of a bench owned by the Defendants.  The armrest “broke away and the plaintiff says that unexpected loss of support put him off balance. His body twisted to the left and he fell to the ground.”.

The Plaintiff sued alleging negligence and a breach of the Occupier’s Liability Act.  The Court found that the armrest was indeed defective from natural wear but the Defendants were not liable as they did not know about this and applying a reasonable standard of inspection likely would not have known about it.  In dismissing the claim Mr. Justice Smith provided the following reasons:

[52]         In this case, there is evidence that this type of bench, when exposed to the elements on a long-term basis, does deteriorate over time and that the bench broke at the very spot where the deterioration is most likely to occur. That is evidence from which it can be inferred, on the balance of probabilities, that there was some defect or deterioration in the wood that caused the armrest to break off when the plaintiff put his weight on it. I find that the plaintiff has satisfied the first branch of the test referred to in Thomas.

[53]         On the second branch of that test, the question is whether the presence of that defect amounted to an objectively unreasonable risk of harm. That depends on whether the Strata knew or reasonably should have known about it, and whether a reasonable owner, knowing about the defect, would have repaired or removed the bench before the date of the plaintiff’s fall. The standard is one of reasonableness, not perfection.

[54]         The evidence is clear that the Strata Council had received no complaints about the bench and was not aware of any defect. The evidence of Ms. Lennard is that benches were inspected regularly to ensure they were secure and in good condition. That inspection was undoubtedly more cursory or less exacting than what the plaintiff’s experts suggest, but there is no evidence that residents of a strata who volunteer to serve on a garden committee had or should have had the same knowledge as experts in wood products.

[55]         Dr. Nichols said the purpose of the inspection he recommends is to “simulate the strains or stresses applied to the wood structure during use.” Mr. Moffatt said, on discovery, that the benches were used “extensively and intensively during the summer months.” As counsel for the Strata notes, the “ordinary stresses and strains” were not just simulated, but were actually being applied on a regular basis.

[56]         I find that the standard of inspection put forward by the plaintiff is one of perfection rather than reasonableness. But even if that standard is applicable, the plaintiff’s expert, Mr. Anderson’s opinion was that the detailed inspection be done only at least once a year. The logical time to perform an annual inspection would have been in the spring—before the period of most intensive use and immediately after the season of greatest exposure to rain. There is no evidence from which it can be inferred that the defect that caused the plaintiff’s fall in December 2015 would have been present or detectable on an inspection six to eight months earlier.