(UPDATE November 18, 2011 – The case discussed below was upheld in reasons for judgement released today by the BC Court of Appeal. These can be accessed here)
Reasons for judgement were released this week by the BC Supreme Court, Campbell River Registry, discussing the duties of landlords to take reasonable steps to make sure buildings they own are safe for tenants and guests.
In today’s case (Jack v. Tekavec) the Defendant owned an apartment in Gold River, BC. He rented this out to a third party who invited the Plaintiff over. While visiting the Plaintiff “leaned against a balcony railing which gave way. (He) plummetted three stories to the ground and was badly injured“. The Plaintiff sued the building owner arguing he was careless for failing to keep the balcony railing in good repair. Mr. Justice Savage agreed. In finding the Defendant at fault for the Plaintiff’s injuries the Court stated as follows:
[38] The evidence establishes that the defendant, as owner and operator of the apartment block, is a landlord pursuant to s. 1 of the RTA. I find that the defendant is responsible for the repair and maintenance of the deck and owes a duty of care pursuant to s. 6 of the Act to the guests of his tenants including Jack.
[39] That duty of care includes, in my opinion, a duty to inspect. The duty to inspect is part of the duty of the landlord to take reasonable care in carrying out the responsibility for the repair of premises under the Act. ..
[44] In this case the defendant knew of a problem with the balcony railing before the tenancy commenced. The tenants requested that he repair the balcony railing but he chose not to do so. The defendant was also aware that the tenant, through Billy, took it upon herself to effect a repair when he did not respond to the requests. The defendant saw that the work done by the tenant was not done properly.
[45] The defendant knew that Billy, who did the work, was not skilled. Although this repair was his responsibility, as the landlord responsible for maintenance, and he knew the work was done wrongly, he chose not to fix it. He was well aware of the danger of improper work on the balcony railing.
[46] In my opinion Tekavec owed a duty of care to Mark and to Mark’s guests including Jack. The standard of care required that he respond to requests of tenants to inspect the tenanted premises regarding the safety problems they raised. The standard of care also required that, if a tenant did work on a balcony railing that he saw was wrongly done, that he inspect and repair or cause to have repaired the balcony railing himself.
[47] By choosing inaction he breached the standard of care of a reasonable landlord responsible for such maintenance. His breach of the standard of care was a direct cause of the accident and Jack’s injuries.
[48] In the result, I find Tekavec liable to Jack for damages.
The Plaintiff’s damages included an award of $100,000 for non-pecuniary loss. In arriving at this figure the Court noted the extent and severity of the injuries which were summarized as follows:
[15] Briefly, Jack’s multiple injuries included a broken pelvis, fractured ribs, fractured vertebrae, and internal injuries resulting in hernias. While in hospital he developed pneumonia requiring a tracheotomy. His pelvis fracture required a metal plate and screws. He pelvis fracture healed but he has lost 2” in height. He now weighs less than 200 lbs and walks with a slight limp. After six months he returned to work but is now unable to do heavy lifting. ..
[63] I have earlier briefly described Jack’s injuries (paras. 13, 14, and 15). I will not repeat that description here. His diagnosis was as follows:
(a) Vertically instable fracture of left side of pelvis involving fractures of the sacrum and symphyseal disruption;
(b) Stable disruption of the right SI joint; bilateral transverse process fractures of L4 and 5 vertebra; left transverse process fractures of the Li and L2 vertebra;
(c) Cecal volvulus resulting in right hemicolectomy; facial fractures not requiring intervention;
(d) Post trauma aspiration pneumonia with respiratory compromise requiring tracheostomy;
(e) Fracture of left 9th and 10th rib;
(f) Post operative problems included mild infection of lower part of the abdominal incision; incisional hernia requiring surgery; mild malunion of let hemi pelvis resulting in 1 to 1.5 centimeter shortening of left leg; degenerative changes at the lumbar spine involving L4-5 and 12-S1 levels.
(g) Pelvic x-rays revealed slight malunion with the left hemi-pelvis being approximately 1 to 1.5 centimeters higher than the right; posterior screw is slightly bent in keeping with this shift in position; hip joints are normal on x-ray; lumbar spine x-rays show degenerative changes at L4-5 level and L5-S1 level. …
[70] In my view, an appropriate award in these circumstances for past and future pain and suffering, loss of amenities and other non-pecuniary losses is $100,000.
