Deficient Wheelchair Ramp Leads to 50% Liability for Slip and Fall

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, finding a defendant 50% at fault for a slip and fall for building a wheelchair ramp which failed to comply with the BC Building Code.
In today’s case (Tenhunen v Tenhunen) the Defendant was a partial paraplegic.  She built a wheelchair ramp on her property for her own use but did not build it to code.  The Plaintiff slipped and fell on this ramp while visiting and suffered various injuries.
In finding the Defendant 50% liable for the incident due to the deficient ramp Mr. Justice Johnston provided the following reasons:

[55]         I find that the defendant failed to take reasonable care for the safety of those, including the plaintiff, who she knew or ought to have known would use the lower ramp. That failure consisted of building too much slope into the ramp, not providing a guard or handrail on the outside, and not making some effort to enhance traction between 2005 and 2011.

[56]         I do not view this as a case where the defendant is relieved from a duty of care because the plaintiff willingly assumed the risk, a defence available under s. 3(3) of the Act. The defendant has not directly argued that the plaintiff willingly assumed the risks of walking down the ramp, but may have indirectly raised the question by arguing that the plaintiff’s contributory negligence is overwhelming and by choosing to proceed down the ramp, the plaintiff was the author of her own misfortune.

[57]         In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 60 (S.C.), McLachlin J., then a judge of this court, said of the statutory defence the following :

A further defence available under the Occupiers Liability Acts of both Ontario and British Columbia, arises from the provisions of those Acts that an occupier owes no duty of care to a person in respect of risks willingly accepted by that person as his own risks: Occupiers Liability Act (B.C.), s. 3(3); Occupiers’ Liability Act (Ont.), s. 4(1). To establish such assumption of the risk, Show Producers need not prove the traditional volenti defence. The standard is considerably lower. For example, in Epp v. Ridgetop Bldr. Ltd. (1978), 8 Alta. L.R. (2d) 195 (T.D.), it was held that a person who was familiar with the circumstances so that he could recognize and avoid danger, assumed the risk of that danger, with the result that the occupier was not liable. Similarly, in Schulz v. Leeside Dev. Ltd., [1978] 5 W.W.R. 620, 6 C.C.L.T. 248, 90 D.L.R. (3d) 987 (B.C.C.A.), it was held that an occupier is not liable for dangers that are known to the user or are obvious to him or are so commonly known that it can be reasonably assumed that the user will be familiar with them. In Holman v. Ellsmar Apt. Ltd. (1963), 40 D.L.R. (2d) 657 (B.C.S.C.), the plaintiff was held to have been fully aware of the condition of an unlighted sidewalk and to have fully accepted the risk of danger. The occupier was absolved of responsibility.

[58]         While the plaintiff could see she was about to walk down a damp wooden ramp, and elected to proceed on the side without a guard or handrail, she could not see that the ramp was steeper than it should have been. Notwithstanding that the standard under s. 3(3) is lower than a common law volenti defence, I conclude that the plaintiff did not willingly assume the risk of walking down a ramp that was too steep.

[59]         I do find that the plaintiff failed to take reasonable care for her own safety in one respect, however. She knew there was no outside guard or handrail when she stepped onto the lower ramp, and she knew there was a handrail at least on the inside of the ramp. Even allowing for increased slipperiness because there was more debris on the inside of the lower ramp, the plaintiff was negligent to forego the increased safety of the handrail.

[60]         I accept that the plaintiff was keeping a reasonable lookout, and otherwise taking reasonable care for her own safety.

[61]         In all of the circumstances, I apportion liability 50% to the defendant, and 50% to the plaintiff.

bc injury law, Mr. Justice Johnston, Tenhunen v. Tenhunen

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ERIK
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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