Lawsuit Against Delta Police Following Bar Fight Dismissed


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.

bc injury law, Burnett v. Moir, Duty of Care, Mr. Justice Cullen, Private Law Duty of Care, Proximity, remoteness

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ERIK
MAGRAKEN

Personal Injury Lawyer

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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