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Faded Warning Sign Leads to Liability for Trip and Fall

Written by admin on . Posted in Occupier's liability claims. 49 Comments on Faded Warning Sign Leads to Liability for Trip and Fall

UPDATE – June 3, 2014 – the BC Court of Appeal overturned the below decision and dismissed the claim finding the faded warning sign, if negligent, was not causative of the fall
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Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, addressing the adequacy of a warning sign in an occupier’s liability lawsuit.
In last week’s case (Simmons v. Yeager Properties Inc.) the Defendant owned a bakery in Chemainus, BC.  Outside the bakery was a concrete landing and a wooden patio deck.  There was a 2-4 inch height difference between these surfaces.  The Defendant marked this with paint and also with a sign that read “watch your step please“.  The sign faded over tie with the words ‘watch‘ and ‘step‘ becoming ‘quite faded and difficult to see‘.
The Plaintiff tripped and fell in this area and sued for damages.  Although the Plaintiff was found mostly at fault for her own injuries, the Defendant was held 25% responsible for allowing the sign to fade.  In so finding Madam Justice Fisher provided the following reasons:
[37]         In my opinion, the presence of white paint demarcating the patio step was not a sufficient warning, as the patio step was quite different in nature from the both the front and back stairs, and it was also sloping along its edge so that its height varied from two to four inches. In addition, with a patio table and chairs in front of it, the entire painted edge may not have been visible to customers approaching from the back stairs as the plaintiff did. As the defendants must have considered, it was necessary to specifically alert customers to the presence of this step with warning signs. Here, the warning sign that was most visible to the plaintiff was ineffective due to wear and tear.
[38]         The plaintiff says that the measures taken by the defendants after this incident, which were easily done and inexpensive, show that the previous measures were insufficient to make the premises reasonably safe. As with evidence of prior safe use, evidence of what is done after the fact is also a factor to consider in assessing whether the area at the time of the incident was reasonably safe. After the fact conduct is not an admission of negligence, but it may establish that measures were taken which converted an unsafe area into a reasonably safe one, and it may also establish the ease or difficulty with which a risk may have been avoided: see Cahoon at para. 21; O’Leary v Rupert, 2010 BCSC 240 at paras. 47-48.
[39]         In re-painting the edges of all stairs and the patio step in yellow paint, and replacing the red, black and white warning signs with yellow and black signs, the defendants enhanced the safety of the premises. However, other than replacing the faded warning sign, I do not consider that these changes show the previous measures to have been insufficient to alert customers to the change in level at the patio step.
[40]         I find that the ineffective warning sign is evidence of a prima facie breach of the Occupiers Liability Act. In these circumstances, the defendants may refute the breach by leading evidence that they had put into place a reasonable system of inspection and maintenance that was being followed at the time of the accident: Newsham at para. 131, citing Atkins v. Jim Pattison Industries Ltd. (1998), 61 BCLR (3d) 183; and Davis v Kin’s Farm Market (Lynn Valley), 2010 BCSC 677.
[41]         Ms. Laughlin’s evidence was that the outdoor sign needed to be replaced every six to eight months due to fading. She did not have a record of when she replaced the sign but she was at the bakery almost every day and would prepare a new sign when needed. Given how faded the sign was on the date of this incident, I do not consider her inspection and maintenance to be sufficient. It was obvious that the outdoor sign needed to be replaced.
[42]         Accordingly, I find that the plaintiff has proved on a balance of probabilities that by failing to maintain the outdoor warning sign, the defendants failed to take reasonable care to ensure the exterior area leading to the entrance of the bakery was reasonably safe.

Court of Appeal Discusses Standard of Care In Road Construction Liability Cases

Written by admin on . Posted in ICBC Liability (fault) Cases, Occupier's liability claims, Uncategorized. 48 Comments on Court of Appeal Discusses Standard of Care In Road Construction Liability Cases


Reasons for judgement were released this week by the BC Court of Appeal upholding a trial verdict finding the City of Abbotsford and a private contractor 80% responsible for a single vehicle collision in a construction zone.
In this week’s case (Van Tent v. Abborsford) the plaintiff was riding his motorcycle through a construction zone when he drifted over the fogline to his right.  There was a two inch drop off in the pavement level due to on-going construction.  The Plaintiff lost control and was injured.
The Plaintiff was found partially at fault for not driving safely, however, the Defendants bore 80% of the blame for “failing to adequately mark the uneven pavement“.
The trial judge found that the Ministry of Transportation’s Traffic Control Manual for Work on Roadways was informative of the standard of care.   The Defendants “failed to adhere to several of those standards“.  In finding that this was an appropriate standard of care to hold the Defendants to the BC Court of Appeal provided the following reasons:
[11]         Sections 138 and 139 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, require traffic control devices be erected on a highway when there is construction. Those sections read:
Work in progress
138  On a highway where new construction, reconstruction, widening, repair, marking or other work is being carried out, traffic control devices must be erected indicating that persons or equipment are working on the highway.
Erection of speed sign
139  On a highway where new construction, reconstruction, widening, repair, marking or other work is being carried out, traffic control devices must be erected to limit the rate of speed of vehicles or to restrict the manner in which the vehicles are to proceed on the highway.
[12]         The Ministry of Transportation’s Traffic Control Manual for Work on Roadways [the “Manual”] contains prescribed standards for designing and implementing traffic control plans for construction zones on British Columbia highways.  Section 1.1 states that the examples provided within the Manual are “generally the minimum required”…
 
[45]         As already noted, the trial judge held at para. 93 of her reasons that s. 138 of the Motor Vehicle Act and the Manual informed the standard of care expected of a reasonably prudent contractor in the circumstances.  (Although not specifically mentioned, s. 139 is of relevance as well.)  She found in fact that the appellant contractor fell below this standard in a number of ways, beginning at para. 71:
[71]      In this case, the standard of care is greatly informed, although not dictated, by the collection of uniform traffic control standards detailed in the Manual.  By virtue of performing construction work on a provincial highway, the defendants were required, at a minimum, to abide by the principles and guidelines it contained.  The applicable standards endorsed in the Manual accord with common sense and the conduct expected of a prudent contractor in the circumstances in relation to the task of ensuring the safety of the users of the road and work crews during times of construction and maintenance.
[72]      In my view, the defendants failed to adhere to several of those minimal standards.  With respect to many of them, Mr. Stewart variously seemed not to know of them or appreciate their application or the complexities of the planning work that was required of him in creating and implementing an appropriate traffic control plan.
[46]         The errors identified by the appellants are findings of fact made by the trial judge.  The appellants have not identified any palpable or overriding errors that would warrant intervention by this Court.  Those findings of fact are amply supported by the evidence.  I conclude that the trial judge did not err in describing the standard of care, or in concluding that it was breached by the appellants.

Homeowners Liable For Teenage Guest Electocuting Himself By Raising Pole To a Powerline

Written by admin on . Posted in Occupier's liability claims, Uncategorized.


Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, dealing with liability following an unfortunate incident of self-electrocution.
In this week’s case (Bendak v. Bohnet) the 13 year old plaintiff was visiting his friend’s home.  Before going out to play his friend’s mom directed that her son finish a chore dealing with the property’s irrigation pipes.  The Plaintiff tagged along helping his friend to complete the chores.  While attending to the pipes they realized  a rodent may have been caught in one of the pipes.  The boys stood the pipe up which measured some 40 feet in length.  It came into contact with overhead powerlines badly electrocuting the Plaintiff.
The Plaintiff sued the home owners arguing they were liable for the incident pursuant to BC’s Occupier’s Liability Act.  Madam Justice Schultes agreed and in finding the homeowners negligent provided the following reasons:
[59]         What I consider to be the critical factors, however, are the particular circumstances under which Tanner was injured, and not the general practice as applicable to irrigation under power lines in this area.
[60]         Firstly, one must consider the physical setting. Accepting that the usual and proper manner of moving irrigation pipes is horizontally carrying them, and that there is never any reason to stand it vertically during that process, this was still an area fraught with potential peril. Metal pipes of a sufficient length to touch the high voltage line if stood up vertically were strewn about. All that prevented a potentially fatal contact between them were whatever best practices may have been inculcated in Connor in his instructions about moving irrigation pipes, which did not include specific training about this risk. In other words, this was a potentially perilous zone, awaiting only the easily achievable, if completely unnecessary, action of standing up an irrigation pipe to be taken for serious harm to occur.
[61]         Second, one must consider the characteristics of those who were allowed to go into this dangerous physical setting. Although they had both turned 13, these were Grade 7 boys — children by any reasonable description — whose propensity for using objects in every way other than that which they are intended is an intrinsic attribute of childhood. I do not think it is actually necessary to go so far as to find the Bohnets ought to have foreseen that the boys would gopher hunt by tipping up a pipe, although that is certainly within the reasonable range of activities that they might get up to. It is, rather, that with a highly dangerous power source 40 feet or less above them, with a means of making contact ready at hand, the Bohnets depended only on Connor’s remaining within the four corners of the chore itself to keep him and Tanner safe, despite the self?evident immaturity and unpredictability that are attributes of children of that age.
[62]         I think that represents a real risk, one that a reasonable person would regard as anything but farfetched. It is an example of a possibility of serious harm, one that would occur to the mind of a reasonable person. Its relative frequency as an accident in commercial agriculture does not speak to the dangers posed by the activity being carried out by children. The specialized danger to children inherent in this situation means lack of attention by Mr. Bohnet to the Workers’ Compensation poster, directed to him in his capacity as an employer, is not particularly significant either.
[63]         My conclusion is that unsupervised children left in possession of objects capable of inflicting serious harm on themselves if they engage in quite typical childish behaviour should be seen by any reasonable person as a significant risk of harm. Simply, these boys were put in a situation in which their safety depended entirely on Connor doing only that which he had been entrusted and told to do, and not behaving as children.

$100,000 Non-Pecuniary Assessment for Triggering Early Onset of Arthritic Symptoms

Written by admin on . Posted in ICBC Hip Injury Cases, ICBC Knee Injury Cases, Occupier's liability claims, Uncategorized. 51 Comments on $100,000 Non-Pecuniary Assessment for Triggering Early Onset of Arthritic Symptoms

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for the triggering of arthritic symptoms in pre-existing asymptomatic degenerative joints.
In the recent case (Witt v. Vancovuer International Airport Authority) the Plaintiff was a fire-truck salesman.  Chalking this up to the ‘you learn something everyday’ category, this is apparently a lucrative career with the Plaintiff earning approximately $740,000 per year.  While at the Vancouver Airport the Plaintiff fell through metal plates “that were not secured by the long stakes that should have been used to secure the plates” creating “voids below the plates which allowed the plates to shift as vehicle traffic went over them“.  The Defendant was found fully liable for the incident.
The fall triggered symptoms of pain in the Plaintiff’s back, knee and hip.  He had pre-existing arthritis in these areas with the fall accelerating these conditions resulting in long-standing pain.  In assessing non-pecuniary damages at $100,000 Mr. Justice Burnyear provided the following reasons:

[59] Based on the conclusions reached by the medical experts, on the testimony of Mr. Witt and Ms. Witt, and on the testimony of those who knew him well, I conclude that Mr. Witt has considerable and continuing pain as a result of the Fall and that the pain that he has suffered has made his life less enjoyable.  I find that his inability to walk long distances, his inability to enjoy golfing, hiking and tennis, and his reduced sleep and energy levels have come as a result of the Fall.  I am satisfied that Mr. Witt should be compensated for that pain and suffering.

[60] Regarding the particular complaints of Mr. Witt, I make the following findings.  I find that Mr. Witt now suffers from chronic pain as a result of the Fall.  I also find that, as a result of the chronic pain, there have been negative changes to his disposition, a considerable reduction in his physical activity and capacity, and a significant negative effect on his marriage.

[61] Regarding the back pain experienced by Mr. Witt, I find that some but not all of the back pain experienced by Mr. Witt as a result of the Fall settled by the summer of 2010.  However, I also find that he is now more susceptible to develop spinal stenosis as a result of the Fall.

[62] Regarding the right hip of Mr. Witt, I find that he continues to have severe pain from time to time and discomfort when sitting.  As a result of the Fall, I find that osteoarthritis has become systematic and that this has become the case earlier than what would have occurred but for the Fall.  While I find that there was a degree of degenerative spondylosis and arthritis prior to the Fall, I find that the Fall produced severe pain in the right hip that would not have been experienced by Mr. Witt but for the Fall and which has produced early onset of degenerative spondylosis and arthritis.

[63] As a result of the Fall, I find that the pain and weakness being experienced by Mr. Witt in his right knee has accelerated the existing degenerative arthritis so that Mr. Witt now requires surgery.  I find that the presence of degenerative arthritis in the right knee of Mr. Witt was accelerated by the Fall…

[68] Taking into account the injuries caused by the negligence of the Defendants, the duration of the pain and suffering produced by the negligence, the likely future pain and suffering caused by the Fall, and by the early onset of arthritic problems caused by the Fall, I set the non-pecuniary damages available to Mr. Witt at $100,000.00.

The Court went on to note that the ongoing injuries and expected medical interventions will interfere with the Plaintiff’s career and assessed damages for diminished-earning capacity at $600,000.

Oiled Stripper Loses Slip and Fall Lawsuit

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Reasons for judgement were released yesterday by the BC Supreme Court, Chilliwack Registry, dismissing a personal injury lawsuit following a slip and fall.
In yesterday’s case (Newsham v. Canwest Trade Shows Inc.) the Plaintiff, a male stripper, slipped and allegedly injured his knee while performing at the Naughty but Nice Sex Show.  The Plaintiff sued for damages alleging he slipped due to an “oily substance on the stage floor“.  Mr. Justice Brown ultimately dismissed the claim.  In doing so the Court noted the oily substance was possibly baby oil the Plaintiff used in his own performance.  Mr. Justice Brown provided the following reasons:

148] With respect to the negligence claim, I find the following:

a)       The plaintiff has failed to prove the defendant breached any duty of care it owed to the plaintiff under the Occupiers Liability Act or at common law:

i.        The evidence, considered as a whole, falls short of proving on a balance of probabilities that a hazardous substance was present on the stage at the material time and was responsible for the plaintiff’s slip.

ii.        Even if the plaintiff had established that a slippery substance was the cause of his slip, it is equally likely that the slippery substance in question was residue of baby oil the plaintiff used for his performance as it was body paint left from an earlier performance on the stage.

iii.       Moreover, it is also possible that the slip was caused by the plaintiff’s prior knee injury and thus independent of any slippery substance.

iv.       Even if the plaintiff had successfully identified a slippery substance as the cause of his slip, particularly the body paint from a prior performance, he still failed to establish that its presence was caused by the failure of the defendant to provide a reasonably safe environment in which he would perform.

b)       Even if the plaintiff had succeeded in proving the defendant breached its duty of care, he would have still failed to prove the defendant’s negligence as the cause of the injury he sustained, which I find the evidence, considered as a whole, shows was just as likely precipitated by the prior condition in his right knee as by the presence of a slippery substance on which he may have slipped during his performance.

c)       I find it equally likely that any slip and resulting injury the plaintiff experienced related to the nature of his performance and the condition of his knee at the time of the performance as to the presence of a hazardous substance on the stage.

Welcome Vancouver Sun Readers

Written by admin on . Posted in BC Injury Claims Media Archives, Occupier's liability claims, Uncategorized.


Earlier this week I had the pleasure of being briefly interviewed by Gordon Hoekstra of the Vancouver Sun who was authoring a story on waivers of liability for sports organizations.  In short the article emphasized the need for organizations to clearly bring liability waivers to the attention of those signing them otherwise there is risk that the waivers will be ineffective.
For those of you who are visiting this site looking for more information addressing this topic you can click the following link to access my archived posts discussing waivers of liability in BC Injury Claims.

Lawsuit Against Delta Police Following Bar Fight Dismissed

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Lengthy reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, disposing of a personal injury lawsuit launched by a former NHL enforcer against the Delta Police and others following a 2006 assault which occurred at the Cheers Pub in Delta, BC.
In this week’s case (Burnett v. Moir) the Plaintiff suffered a moderately severe traumatic brain injury after being struck on the head with a bar stool.  The injury ended the Plaintiff’s professional hockey career.
There was video surveillance which showed “an assailant striking the plaintiff on the head with a bar stool taken from the premises afer he apparently stumbled and fell to the ground as he and the others were being ejected“.  The assailant was never identified.
The Plaintiff sued the owners and managers of the Cheers Pub, the local police, and the local government for compensation for his personal injuries.  Prior to trial he settled his case with the Pub.  The Plaintiff alleged that the local police and the local government were liable because they “failed to properly identify Cheers as a nuisance to the public, a trap for the unwary, and to take pre-emptive steps to abate the danger it represented to potential patrons”.
The Plaintiff led evidence to support his allegations including evidence that from 1998-2007 “there were a total of 2,410 police service calls to Cheers during that period, 231 of which were for assaults, 9 of which were for uttering threats, 10 of which were obstructing a peace officer, 138 for suspicious person/vehicle occurrences, 200 of which were for creating a disturbance, 217 for “unspecified assistance” and 1,605 of which were for “other”“.
Despite this evidence the lawsuit was dismissed with the Court finding that the Police and Local Government did not owe the Plaintiff a duty of care in these circumstances. Mr. Justice Cullen summarized his analysis as follows :

[411] The presence or absence of a close causal connection between the negligence alleged and the harm caused is a factor in determining proximity.  In Odhavji Estate v. Woodhouse, supra,Iacobucci J. held as follows in the context of a proximity analysis at para. 57:

Although a close causal connection is not a condition precedent of liability, it strengthens the nexus between the parties.

[412] Where, as here, the causal connection, insofar as the failure to warn is concerned, is remote and speculative rather than close, it cannot be said that the nexus between the parties is strong or compelling.

[413] For those reasons, while finding some limited evidence of a connection between the Delta Defendants and prospective Cheers patrons arising from the police corporate knowledge that a person entering Cheers was likely to be exposed to an environment involving some violent or turbulent circumstances, I am not satisfied the evidence reaches the level of establishing a close and direct relationship featuring the indicia of proximity identified by Chief Justice McLachlin in Hill v. Hamilton Wentworth, supra, or manifested in other decisions such as Jane Doe, Mooney, orSchacht.

[414] I thus conclude the relationship at issue does not sustain sufficient proximity to found a duty of care.  The plaintiff was but one of a large indeterminate pool of potential patrons of Cheers, rather than an identifiable potential victim of a specific threat.

More From the BC Court of Appeal On Occupier's Liability Lawsuits

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Last month the BC Court of Appeal released reasons for judgement clarifying that there is only one standard of care to be applied in BC Occupier’s Liability lawsuits.  This week the BC Court of Appeal released further reasons for judgement providing a useful summary of the legal principles to be applied in these types of claims.
In this week’s case (Foley v. Imperial Oil Limited) the Plaintiff, an ICBC adjuster, slipped and fell on ice at an Esso Station in North Vancouver.  He dislocated his knee and sued for damages.  At trial his claim succeeded and he was awarded just over $45,000 in damages.  The Defendant appealed arguing the trial judge misapplied the law.  The BC Court of Appeal disagreed and upheld the trial judgement.  In doing so the Court provide the following helpful summary of the legal principles in occupier’s liability litigation:

[26] The law on occupiers’ liability has gradually merged from the “rigid rules and formal categories” of the common law that “spawned confusion and injustice”, into the general principles that govern the law of negligence. See Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 9th ed. (Markham, ON: LexisNexis Canada Inc., 2011) at p. 705.

[27] The duty of an occupier is now governed by s. 3 of the Act, which provides:

Occupiers’ duty of care

3(1) An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person’s property, on the premises, and property on the premises of a person, whether or not that person personally enters on the property, will be reasonably safe in using the premises.

(2) The duty of care referred to in subsection (1) applies in relation to the

(a)   condition of the premises

(b)   activities on the premises, or

(c)   conduct of third parties on the premises.

[28] The standard imposed by the Act is one of reasonableness: the reasonableness of the system implemented to safeguard the particular risk on the premises, and the reasonableness of the implementation of that system. The standard of reasonableness is not one of perfection. As was noted by the trial judge at para. 55, citing Lamont v. Westfair Properties (Pacific) Ltd., 2000 BCSC 406 at para. 20, “An occupier is not expected to be an insurer against all risks[.]”

[29] The Act provides a complete code regarding the duty of an occupier of land. Reference to earlier common law cases is no longer required and may, in fact, result in legal error if the wrong standard of care (one based on the common law categories) is applied, rather than the statutory standard of care. The comprehensive nature of the standard of care of an occupier under the Actwas confirmed in Weiss v. Young Men’s Christian Association of Greater Vancouver (1979), 11 B.C.L.R. 112 (C.A.), where Mr. Justice Aikins, for the Court, noted at 118:

… In my view, s. 3(1) is comprehensive, in the sense that it fully and clearly imposes a duty on an occupier and defines the standard of care necessary to fulfil that duty. Thus, in my judgment, it is unnecessary to an understanding of the standard prescribed by the subsection to refer to any of the specially formulated standards of care laid down in the common law cases. Indeed, to do so is more likely to mislead than assist in understanding what the subsection says.

[30] As with any tort claim, the party advancing the claim carries the burden of proof on a balance of probabilities. The burden of proof in establishing liability under the Act was described inKayser v. Park Royal Shopping Centre Limited (1995), 16 B.C.L.R. (3d) 330 (C.A.) as follows:

[13]      The onus of proof on a plaintiff to prove the liability of a defendant on a balance of probabilities in a standard negligence action also applies in cases arising under the Occupiers Liability Act. As Wood J.A. held in Bauman v. Stein (1991), 78 D.L.R. (4th) 118 (B.C.C.A.) at 127:

Section 3 of the Occupiers Liability Act does not create a presumption of negligence against “the occupier of the premises” whenever a person is injured on the premises. A plaintiff who invokes that section must still be able to point to some act (or some failure to act) on the part of the occupier which caused the injury complained of before liability can be established.

Dark Alley Assault Occupier's Liability Lawsuit Dismissed

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Reasons for judgement were released last week by the BC Supreme Court, Kelowna Registry, dealing with an interesting issue: Can a commercial occupier be sued for an intentional assault for having inadequate lighting in their alleyway.
In last week’s case (Vaughn v. Kelowna Speedometer Ltd.) the Plaintiff was a patron at the Blue Gator Bar and Grill in Kelowna, BC.  After several hours he left the pub.  As he was walking in the pub’s back alley he was “assaulted from behind and seriously injured“.  His assailant was unknown.  The Plaintiff sued the Pub alleging that the alley had poor lighting and this contributed to the assault.  Mr. Justice Shabbits dismissed the lawsuit finding that even if the lighting was inadequate for the conditions it did not cause the assault using the “but for” test.  In dismissing the claim the Court provided the following reasons:

[23] In my opinion, the plaintiff has not shown that but for proper lighting he would not have been injured. I agree with the submission that additional lighting may have reduced the risk of an assault, but lack of lighting did not cause the assault. The plaintiff could have been assaulted in daylight hours, or assaulted farther down the alley. It is speculation to infer that lighting was a factor in the assault occurring. Even assuming that the lighting at the rear of the Blue Gator was inadequate, the evidence is not capable of proving, on a balance of probabilities, that Mr. Vaughn would not have been injured had proper lighting been in place.

[24] Mr. Vaughn bears the burden of showing that “but for” the negligent act or omission, the injury would not have occurred. There is no evidence on which I would find that but for adequate lighting, the injury would not have occurred. I am of the opinion that it has not been shown, on a balance of probabilities, that a lack of lighting caused Mr. Vaughn’s loss.

BC Court of Appeal Finds There is only a "Single Standard" Under the Occupier's Liability Act

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Reasons for judgement were released today by the BC Court of Appeal discussing the standard of care for Occupier’s Liability lawsuits in BC.
In today’s case (Charlie v. Canada Safeway Limited) the Plaintiff slipped and fell near a display of flowers while shopping at Safeway in Duncan, BC.  The flowers were kept in water and when customers picked up the flowers for purchase they sometimes “could drip (water) on the floor”.  She was injured and sued for damages.
During her fall the Plaintiff knocked over one of the buckets of flowers spilling a considerable amount of water on the floor.  The Plaintiff could not offer direct evidence that dripped water made her fall but inferred that this was the cause of her fall.  At trial the Court refused to make this inference and dismissed the lawsuit.  The BC Court of Appeal dismissed the appeal finding there was no error in law in the Court refusing to draw the same inference the Plaintiff made.
The Plaintiff went further and argued that “there are two types of occupiers’ liability cases:  “due diligence cases” and “unsafe conditions cases”. She accepts that in “due diligence” cases, a system such as the one in place in the case before us would satisfy the requirements of the Act. She says, however, that where the occupier has created an “unsafe condition”, there is a greater duty to take care to protect visitors to the premises from risk.”
The Court of Appeal rejected this argument and in doing so made it clear that there is only one standard of care to be applied in BC Occupier’s Liability lawsuits.  The Court provided the following reasons:
[19] I do not agree with the plaintiff’s contention that different standards of care apply to different types of hazards on an occupier’s premises. The Occupiers Liability Act establishes a single standard of care, “a duty to take that care that in all the circumstances of the case is reasonable to see that a person … will be reasonably safe in using the premises.”  While the extent of a danger posed by any particular hazard will obviously be an important factor in assessing the reasonableness of an occupier’s response to it, I do not think that it is helpful to define different types of hazards that entail different standards of care.