Tag: Foley v. Imperial Oil Limited

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

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.

Gas Station Found Liable for Slip and Fall on Ice; $40,000 Non-Pecs for Dislocated Kneecap

Reasons for judgement were released this week dealing with fault and damages arising from a slip and fall incident at a North Vancouver gas station.
In this week’s case (Foley v. Imperial Oil Limited) the Plaintiff, an insurance adjuster for ICBC, slipped and fell on ice located near a car wash at an Esso Station in North Vancouver.   He suffered various injuries, the most serious being a dislocated knee.  He claimed the Defendants were liable for his injuries and sued for damages.  The Defendants disagreed arguing that they took reasonable care to keep the area clear of ice.
Mr. Justice MacKenzie agreed with the Plaintiff and found the Defendant responsible for the incident.  The evidence showed that when cars left the car wash water would drip down and sometimes freeze causing ice.  The Court found that the Defendant did not take adequate steps to warn of this known hazard.  In finding the gas station at fault the Court reasoned as follows:

[69] The defendants maintained no regular patrol for ice, but left the frequency of patrol for ice to the employees. Mr. Morrow testified that when he did patrol, he occasionally found ice, and then he would apply fresh salt. So the presence of ice would move him to reapply salt. This indicates either that he was not salting enough, or the defendants were not sufficiently addressing the problem. Both Mr. Morrow and Mr. Christian knew that dripping water from cars would wash the salt away.

[70] In short, the washing away of salt by the water dripping from cars leaving the car wash bay, and then freezing, constituted an unusual hazard of which the defendants were aware, but the plaintiff was not. Mr. Morrow knew the ice was hard to see, particularly if it was clear, and covered by water dripping from cars. He saw the ice on which the plaintiff slipped and it was covered by water. Therefore, it was hard to see.

[71] The defendants did nothing to warn users of the car wash about the risk of ice. They could easily have put out the orange warning cones that conventionally alert people to risk, or posted readily visible signs warning of the risk of ice. The expense would have been minimal. They could also have improved the drainage to avoid the washing away of the salt, or closed the car wash, as they had done on a couple of occasions before when it was cold enough for ice to form at the known area of risk. The patrol for ice, and salting could have been more frequent.

[72] In MacLeod v. Yong, [1997] B.C.J. No. 2108 (S.C.) at para. 8, Mr. Justice Burnyeat listed a series of factors that are relevant in considering whether an occupier has fulfilled the duty imposed by s. 3 of the Occupiers Liability Act. These factors include “whether an unusual danger was present, whether a warning had been provided to the plaintiff, the ease or difficulty and the expense with which the unusual danger could have been remedied, and any prior record of safe usage of the premises by others or by the plaintiff.”

[73] In considering whether the defendants have breached their duty to take reasonable care to ensure the plaintiff would be reasonably safe on the premises, I must consider all the circumstances of the case, including: the slip and fall was reasonably foreseeable and the defendants were clearly aware of it; the efforts made by the defendants depended on the judgment of employees who were prone to human error and who were occupied with other duties; and it would have been easy and inexpensive for the defendants to put up a warning sign, or orange cones at the location they knew was particularly hazardous.

The Court went on to award the Plaintiff $40,000 for his injuries which included a dislocated knee cap.  In reaching this award Mr. Justice MacKenzie provided the following reasons:

[126]     The plaintiff’s most serious injury in the slip and fall was his dislocated right patella (kneecap). He also had a minor scrape on his head and strained wrists and abrasions that were bandaged at the hospital. He took nine days off work as the combined result of his knee and wrist injuries.

[127]     The dislocated kneecap caused the plaintiff excruciating pain. There was profuse swelling and a very large bruise. It was swollen and red for a few weeks or a month or more after the fall.

[128]     The plaintiff initially required crutches because he could not bear his weight. He also used a brace afterward, and tapered off his use of both the crutches and brace. The evidence as to how long he used both varies somewhat, but is simply a matter of inaccurate recording or memory, and not the plaintiff’s dishonesty.

[129]     The wrist pain lasted a month or two, and he had a very stiff neck with pain for a week or two…

[135] The knee pain, while gradually abating, had essentially plateaued by the spring of 2007. It was getting stronger and better, but he still felt pain and instability in the right knee in the spring of 2007. He saw his doctor in the spring and summer of 2007 and the doctor recommended he see a specialist, Dr. Forsyth, at the McGavin Clinic at UBC…

[140] In the summer of 2008, the plaintiff’s symptoms improved again and he noticed fewer symptoms. The pain ranged from nothing to 20 out of 100, or quite modest discomfort. However, knee stamina for walking and standing had not improved. Sitting for prolonged periods made his knee ache. He also noticed increased joint sounds in his knee, especially when climbing stairs. The plaintiff was forthright in admitting that he had some such sounds in both knees before the slip and fall, but after it, he noticed increased joint sounds in his right knee which he still notices…

[168]     The damages awarded in each case are specific to the particular facts. In this case, the plaintiff has suffered, and continues to suffer chronic pain and loss of enjoyment of life. His condition is likely to remain stable, although there is a risk that he may develop post-traumatic arthritis in the future, which could have further negative impact on his daily activities.

[169]     Based on my findings and upon reviewing the cases, I find an award of non-pecuniary damages of $40,000 is appropriate.

Contact

If you would like further information or require assistance, please get in touch.

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer