Tag: negligence

BC Court of Appeal Lays Down The Law of Sports Negligence Claims in BC

Written by ERIK MAGRAKEN on January 6, 2024. Posted in Uncategorized.

Today the BC Court of Appeal published reasons for judgement clarifying the law in sports negligence lawsuits in BC. In short liability can flow if a player is dangerous or reckless in their actions, even if executing an otherwise permitted technique.

In the recent case (Cox v. Miller) the Plaintiff suffered a grade 3 dislocation of the right acromioclavicular joint as a result of a slide tackle in a recreational soccer game. The game was under FIFA rules in which slide tackles were allowed. At trial the Defendant was found liable with the court finding he approached the Plaintiff from a blind spot, had both his feet leave the ground and violently slide tackled the Plaintiff while having no chance of actually contacting the ball. The court found doing so was negligent. Noting that while slide tackles were legal this particular slide tackle was dangerous, reckless and beyond what players consented to at this recreational level of play.

The Defendant appealed arguing the court imposed too tough of a standard of care. The BC Court of Appeal disagreed and dismissed the appeal. In doing so the Court provided the following summary of negligence principles applied in the sports law setting in British Columbia:

[40] While the referee was in charge of the match, the judge was in charge of the litigation. She was, in effect, the final referee. On her factual findings, the appellant’s conduct amounted to serious foul play that would have justified the issuance of a red card disqualifying the appellant from further participation in the game. In short, the tackle was not, as the appellant suggests, permitted by the rules of the game, nor was it found by the judge merely to be careless. It was found to be dangerous.

[41] Respectfully, it appears to me that the appellant has advanced a straw-man argument, divorced from the judge’s factual findings. Put bluntly, the issue he seeks to have resolved in this case—whether mere carelessness in the execution of a permissible defensive play made attracts liability in negligence—does not arise on the factual findings made by the judge.

[42] Second, I know of no authority for the broad proposition the appellant would have us endorse—that a play permitted by the rules of the game, no matter how dangerously executed and regardless of the context in which the game is being played (here, a game played in a recreational league involving participants with a wide range of skill and experience), can never give rise to liability in negligence.

[43] The appellant cites no direct authority for the proposition that a permissible play, executed dangerously, can never amount to negligence.

[44] In my view, the appellant can derive no comfort on this point from the remarks of Lambert J.A. in Herok, which merely affirm the proposition that careless acts falling outside the risks assumed by players by participating in the game are capable of grounding liability in negligence. The case certainly does not support the broad proposition advanced by the appellant. Further, I am unpersuaded by the appellant’s attempt to read into the governing authorities of this Court, including Herok, Unruh and Zapf, in support for his position.

[45] By analogy, open ice body checking is permitted in hockey. However, liability in negligence may flow if the body check is executed in a manner that exposes an opponent to an unreasonable risk of harm—a risk the opponent could not reasonably be expected to assume by participating in the game, having regard to contextual factors including the speed and level at which the game is played. A hockey player is no more immune from liability because body checking is permitted than is a driver who executes a lawful left turn in a manner heedless of the safety of others.

[46] Third, acceptance of the appellant’s proposition would give the rules of play a near determinative role in the analysis. Again, I know of no authority that would elevate whether the play in issue was permitted by the rules of the game to such a lofty status. While the rules of the game are a factor to be considered along with other circumstances, the rules are by no means conclusive: Unruh at paras. 23–25, 29, 32–33; Finnie v. Ropponen, 1987 Carswell 659, [1987] B.C.J. No. 448 (S.C.) at paras. 12, 14; Condon v. Basi, [1985] 2 All E.R. 453 (C.A.), 1 W.L.R. 866—where, as here, a dangerously executed slide tackle grounded a negligence finding.

[47] The appellant also argues that the judge erred in law by conflating the meaning of “recklessness” as used in the FIFA rules of play with recklessness in law. I see no merit in this position. Nothing in the judge’s reasons supports the appellant’s position on this point. Further, as I will explain below, the judge found the appellant to have deliberately attempted a slide tackle that he knew, or ought to have known, created an unjustified risk of harm. Against these findings, she made no error in characterizing the appellant’s conduct as reckless.

[48] Finally, the appellant submits that the factual findings of the judge support only a finding of carelessness. Again, I do not agree. The tackle came from behind the respondent, who did not see the challenge coming and had no opportunity to brace himself for impact. The appellant slid into the respondent with both of his legs off the ground, striking the respondent slightly below his knees. The trial judge found there was no possibility that the appellant would reach the ball in executing the tackle. In these circumstances, the judge’s factual findings, when viewed in the context of the evidence as a whole, support her ultimate conclusion that the appellant’s actions were reckless and dangerous.

…

[53] To summarize, I would reject the appellant’s proposition that a defending player in a soccer game is immune from liability for negligence if there is a possibility they will contact the ball in executing a slide tackle, no matter how remote that possibility is, or how dangerous execution of the tackle will be to an opposing player. That is not and could not be the law.

[54] Whether this ground of appeal is properly characterized as an extricable error in law or a question of mixed fact and law—the appellant was not clear on this point—makes no difference to the end result. I see no extricable error in law, nor have I been persuaded that the judge’s analysis reflects palpable and overriding error.

The High Cost of Negligent Sport – Rec Soccer Player Ordered To Pay over $100K in Damages

Written by ERIK MAGRAKEN on March 15, 2023. Posted in Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, ordering a Defendant to pay over $100,000 in damages following a negligent slide tackle in a recreational soccer game.

In the case (Miller v. Cox) the plaintiff suffered a grade 3 dislocation of the right acromioclavicular joint as a result of the tackle. Several witnesses testified and the court found all of them credible except the Defendant who the court found gave “self-serving and wholly unbelievable” testimony.

The Court found the Defendant approached the Plaintiff from a blind spot, had both his feet leave the ground and violently slide tackled the Plaintiff while having no chance of actually contacting the ball. The court found doing so was negligent. In finding liability the Court provided the following summary of the legal principles in play and following findings of fact:

Soccer Coach Sued For Allegations of Injury After Not Following Concussion Protocols

Written by ERIK MAGRAKEN on May 1, 2022. Posted in Uncategorized.

Interesting reasons for judgement were recently published by the Supreme Court of Nova Scotia allowing a lawsuit to continue against a youth soccer coach based on allegations that she made a concussion worse by allowing an athlete to continue playing contrary to concussion protocols.

In the recent case (Rutt v. Meade) the Plaintiff was injured in a vehicle collision and sued for damages. The alleged injuries included a concussion.

A few weeks after the crash the Plaintiff played in a national soccer tournament for her club.

The Defendants in the car crash lawsuit brought a third party action against the soccer club and the coach arguing it was negligent to allow the Plaintiff to play soccer while she was still dealing with concussive injuries from the crash and that participation in sport was contrary to the established concussion protocols and this added to her prolonged injury. The coach and club asked to be let out of the lawsuit arguing they could not be responsible for the concussion which was caused by the car crash.

In denying the application and allowing the third party claim to continue the Court noted that depending on how the facts play out a coach could be found legally liable in such circumstances. In allowing the claim to proceed Justice Gail L. Gatchalian provided the following reasons:

Martial Arts Student Waiver Held Not To Extend to Injuries Sustained in a Tournament

Written by admin on February 27, 2019. Posted in Uncategorized.

Post originally published here on my other legal blog combatsportslaw.com
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Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, allowing a lawsuit against a Brazilian Jiu Jitsu instructor to proceed for injuries a student sustained in a tournament.
In the recent case (Peters v. Soares) the Plaintiff was a student of the defendant’s BJJ academy. The Plaintiff participated in a tournament where he sustained injury. He sued for damages alleging his instructor was negligent in allowing him “to compete against a participant in a higher weight class and in a competition where stand up skills were required….(when the plaintiff) had no experience or training in stand up skills“.
As part of the plaintiff’s BJJ membership agreement he signed a waiver agreeing not to sue for injuries “in connection with my participating in the Classes“. The Defendant argued that this waiver should be upheld and the lawsuit dismissed. The Court disagreed noting that a waiver must be interpreted as only covering “matters specifically in the contemplation of the parties at the time the release was given“. Using this test the court found the waiver for injuries in classes could not extent to a tournament. In reaching this conclusion Madam Justice Matthews provided the following reasons:

[24] Mr. Soares argues that because Mr. Peters’ claim of negligence is that the defendants knew he had no standing skills training, his claim arises from or is connected with his participation in the classes.

[25] I do not accept that argument. Mr. Peters’ claim asserts a duty of care owed in relation to the competition, not the classes. While Mr. Peters alleges that Mr. Soares and Carlson Gracie knew his ability and training did not extend to standing skills and standing skills were required for the competition, it is not the training or lack of it that he asserts was negligent; it is inviting him to participate in the competition given what they knew about his training or lack of it. It is likely that at a trial of the negligence issue, Mr. Peters will seek to prove that the defendants’ had knowledge of his lack of standing skills training at least in part because of their interaction during the classes, but that is not the same thing as alleging negligence in relation to or arising from the classes.

[26] In addition, there is no evidence that the competition was in Mr. Peters’ contemplation at the time he signed the membership agreement, and so there is no factual basis on which to find that Mr. Peters contemplated that the waiver provisions of the membership agreement would apply to the competition. The membership agreement was signed on September 23, 2015. Mr. Peters signed up for the competition on May 13 or 14, 2016, two weeks before he participated in it. There is no evidence that Mr. Peters was aware of or contemplated participating in the competition at the time he signed the membership agreement.

[27] Mr. Soares has not led evidence that he had the competition in contemplation when Mr. Peters signed the membership agreement. In his affidavit, Mr. Soares described the waiver terms of the membership agreement. All of Mr. Soares’ evidence about the membership agreement and its waiver terms specifically reference the classes. He does not reference the competition at all when deposing about the waiver terms of the membership agreement.

[28] I find that neither Mr. Peters nor Mr. Soares had the competition in contemplation when Mr. Peters signed the membership agreement.

[29] The first Tercon inquiry is answered in the negative. The membership agreement waiver does not relate to Mr. Peters’ claim regarding the injuries he allegedly sustained in the competition and so cannot exclude Mr. Peters’ claim.

Single Vehicle Leaving Roadway With No Reasonable Explanation Sufficient to Prove Negligence

Written by admin on August 21, 2013. Posted in ICBC Liability (fault) Cases, Uncategorized.

Two cases were recently released by the BC Supreme Court addressing negligence in the face of single vehicle collisions involving vehicles leaving the roadway.
In the first case (McKenzie v. Mills) the Plaintiff was injured when she was the passenger in a vehicle the left the roadway. The Plaintiff had no recall of how the collision occurred. The Defendant disputed liability arguing there was no sufficient evidence to prove the collision was caused by negligence. Madam Justice Dorgan disagreed finding that absent a sensible explanation by the Defendant negligence could be inferred. In so concluding the Court provided the following reasons:
[30]         Crossing the oncoming traffic lane and even losing control to the point of rolling the vehicle does not necessarily give rise to an inference of negligence; in other words, it is not determinative of the issue of liability. See Benoit v. Farrell Estate, 2004 BCCA 348 where Smith J.A., writing for the court, says at para. 77:
The question whether negligence should be inferred when a motor vehicle has left its proper lane of travel usually arises in cases, like Fontaine, where the driver of the vehicle is sued by a plaintiff injured in the accident. In such cases, the plaintiff bears the burden of proof. The inference that a vehicle does not normally leave its proper lane in the absence of negligence by its operator may afford a prima facie case but, if the defendant driver produces a reasonable explanation that is as consistent with no negligence as with negligence, the inference will be neutralized: see paras. 23-24.
[31]         However, in this case, neither the defendant nor the third party offered evidence of explanation of the cause or circumstances of the accident. The defendant left her lane of travel (northbound), crossed over the oncoming lane (southbound), and rolled the truck which was found in the ditch of the southbound lane. The defendant was intoxicated at the scene; she was given a 24-hour driving prohibition as a result; and was charged with driving while subject to a driving restriction. While her level of intoxication at the scene is not direct evidence of intoxication while driving, there is no evidence of the defendant, or the plaintiff for that matter, drinking after the accident and before the police arrived. The only reasonable inference to draw is that the defendant was driving while drunk.
[32]         I have concluded the only reasonable inference to draw from the whole of the evidence is that the plaintiff has established a prima facie case of negligence against the defendant. The defendant offers no evidence of explanation; therefore, the plaintiff has proved liability.
In the second case (Garneau v. Izatt-Sill) the vehicle left the roadway. There were no witnesses and two of the vehicles occupants were killed due to the forces of the crash. The Plaintiff, the sole survivor, had no recall of what occurred. The Court found that in the circumstances a finding of negligence was warranted with Mr. Justice Weatherill providing the following reasons:
[100]     The evidence leads overwhelmingly to the conclusion that the driver of the vehicle was negligent and that his negligence caused the crash. The posted speed limit was 110 kph. The vehicle was travelling in excess of 130 kph at the time of the accident. As Sgt. Nightingale put it, the crash was caused by speed and the driver’s inattentiveness. I accept this evidence. Mr. Bowler agreed that there was no indication of anything mechanically wrong with the vehicle that would have caused or contributed to the crash and that the crash was consistent with driver inattention.
[101]     In such circumstances, negligence can be inferred: Nason v. Nunes, 2008 BCCA 203 at para. 8. The defendants led no evidence to the contrary.

Crashes and Winter Driving Conditions: Take Care to Be Accurate When Calling ICBC

Written by admin on January 16, 2012. Posted in ICBC Liability (fault) Cases, Uncategorized. 48 Comments on Crashes and Winter Driving Conditions: Take Care to Be Accurate When Calling ICBC

With the first heavy snow of 2012 hitting the Lower Mainland and Greater Victoria comes the expected increase in motor vehicle collisions. With this in mind I’m republishing a post I originally wrote in the early days of this blog reminding injured passengers of the consequences of minimizing details of wrongdoing when reporting a collision to ICBC:
Snow in BC has two reliable results 1. Car Accidents, 2. Phone calls to ICBC and lawyers about those car accidents. The second is particularly true in Victoria and Vancouver because of the local populations relative inexperience dealing with winter driving conditions.
In anticipation of the almost certain phone calls I will receive this week I write this post.
If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits. There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering and other losses in these circumstances. Your right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In single vehicle accidents drivers usually only have themselves or the weather to blame.
If someone else contributed to the accident (perhaps the road maintenance company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to claim against their policy of private insurance.
Now, if you are a passenger in a single vehicle, weather related accident, and your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you can bring a tort claim against them in addition to claiming your Part 7 Benefits.
If you are advancing a tort claim against a driver be weary of the defence of “inevitable accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven then the tort claim can be defeated.
People naturally don’t want to get those known to them in trouble and it is all too common for passengers reporting such a claim to ICBC to readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not careful and you give ICBC the alternate impression with a view towards helping the driver out, your statement may severely damage your ability to bring a tort claim.
Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that an accident was inevitable you will have a much harder time advancing or settling your tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will harm your claim for lawful compensation.

Supreme Court of Canada To Address The Law of Causation in Injury Lawsuits

Written by admin on June 16, 2011. Posted in Uncategorized. 54 Comments on Supreme Court of Canada To Address The Law of Causation in Injury Lawsuits

(UPDATE June 29, 2012 – the below decision was overturned by the Supreme Court of Canada in reasons for judgement released today. You can click here to read the Supreme Court of Canada’s reasons)

Last year the BC Court of Appeal provided reasons for judgement in Clements v. Clements in which they tried to clarify the law of causation
In short the BC Court of Appeal provided the following summary of the law of causation in BC negligence lawsuits:

[63] In summary, having regard to the over-arching policy that the material-contribution test is available only when a denial of liability under the but-for test would offend basic notions of fairness and justice, I agree with the following statement made by Professor Knutsen in setting out his conclusions (at 187):

g) The “but for” test rarely fails, and currently only in situations involving circular causation and dependency causation:

1) Circular causation involves factual situations where it is impossible for the plaintiff to prove which one of two or more possible tortious causes are the cause of the plaintiff’s harm;

2) Dependency causation involves factual situations where it is impossible for the plaintiff to prove if a third party would have taken some action in the face of a defendant’s negligence and such third party’s action would have facilitated harm to the plaintiff;

h) If the “but for” test fails, the plaintiff must meet two pre-conditions to utilize the material contribution test for causation:

1) It must be impossible for the plaintiff to prove causation (either due to circular or dependency causation); and,

2) The plaintiff must be able to prove that the defendant breached the standard of care, exposed the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that type of injury.

Today the Supreme Court of Canada granted the Plaintiff leave to appeal (permission to appeal). Clarity in this area of personal injury law will be welcomed by lawyers across Canada and I’ll be sure to report on this case once reasons for judgement are handed down.

BC Government Shielded From Liability in "Shaken Baby" Lawsuit

Written by admin on May 8, 2011. Posted in BCSC Civil Rule 9, Shaken Baby Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, discussing when a government authority can be pursued for damages for the negligent excercise of their powers.
In last week’s case (Sivertson (Guardian ad litem of) v. Dutrisac) the infant Plaintiff was brain injured allegedly “while in the care of…a licensed daycare ‘Kare Bare Child Care’ “. The Plaintiff sued various Defendants including the Capital Health Region “CHR” who were responsible for licensing the Daycare in question.
The CHR brought an application to dismiss the lawsuit against them arguing that even if they inadequately exercised their duties the lawsuit could not succeed because the CHR did not owe the Plaintiff a ‘private law duty of care‘. Madam Justice Boyd agreed and dismissed the lawsuit against the CHR. In doing so the Court provided the following reasons:
[51] The overall statutory scheme governing the licensing of daycare facilities provides an efficient framework to ensure the operation of community care facilities “in a manner that will maintain the spirit, dignity and individuality of the person being cared for “(s. 4(1)(a)(i)). …

[57] As in the Cooper decision, the CHR and its inspectors must balance a myriad of competing interests when dealing with the licensing and inspection of daycares, including the daycare owner’s interest in the continued operation of her business and the parents’ and the public’s interest in the protection of children in the care of the daycare owner.

[58] In my view, this balancing of interests is inconsistent with the imposition of a private duty of care. Thus, on a review of all of the authorities, and a consideration of the legislation in issue, I reject the notion that any private law duty of care was owed by the CHR (and its employees) to the infant plaintiff and his family.

[59] If however I am in error, and it is found that such a private duty of law does arise in the circumstances of this case, then I nevertheless find that the application of the second stage of theAnns test yields no different result. As the Ontario Court of Appeal held in Williams v. Canada (Attorney General), 2009 ONCA 378, at para. 17, at the second stage :

…the court considers whether there are “residual policy considerations” that militate against recognizing a novel duty of care. …These are policy considerations that “are not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally”.

[60] In my view, any private law duty of care which may arise in this case would be negated for overriding policy reasons as in the Cooper case. This is because (i) the licensing officers were exercising both policy and quasi-judicial functions such that any decision required the balancing of both public and private interests. The Director must act fairly or judicially in removing an operator’s license and this is potentially inconsistent with a duty of care to children and families; (ii) the Director must make difficult discretionary decisions in an area of public policy. His decisions are made within the limits of the powers conferred on him in the public interest; and (iii) if there was a private duty of care owed by the Director to the children and parents, it would effectively create an insurance scheme for all those children attending licensed daycares within the Province, at great costs to the taxpaying public. As the Court held in Edwards, there is no indication here that the Legislature intended that result. Indeed the statutory immunity from liability provision suggests the contrary.

Affidavits and Exhibits: Take Care To Review the Whole of the Evidence

Written by admin on May 6, 2011. Posted in BCSC Civil Rule 22, BCSC Civil Rule 9, ICBC Liability (fault) Cases, Uncategorized.

Once evidence is introduced at trial it is fair game for the finder of fact to rely on it even if the party that introduced it opposes this result. Useful reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, illustrating this fact.
In this week’s case (Chow-Hidasi v. Hidasi) the Plaintiff was injured in a single vehicle accident. She was a passenger and sued the driver claiming he was at fault for losing control for “overdriving the road conditions“. The Defendant argued that he lost control because he experienced a sudden and unexpected mechanical failure and could not avoid the collision. Ultimately this explanation was accepted and the Plaintiff’s lawsuit was dismissed. Prior to reaching this conclusion the Court ruled on an interesting evidentiary issue.
The trial was a “summary trial” under Rule 9-7 in which the evidence is introduced through affidavits. The Plaintiff’s lawyer’s legal assistant attached portions of the Defendant’s examination for discovery transcript as an exhibit to her affidavit.
The Plaintiff wished to only rely on portions of the reproduced transcript. The Defendant decided to take advantage of other portions of his discovery evidence which was included in the affidavit. The Plaintiff objected arguing that he introduced the evidence and only wished to rely on limited portions of it. Mr. Justice Barrow rejected this argument finding once the evidence was introduced through the affidavit it was fair game for the defendant to rely on it. The Court provided the following insightful reasons:

[6] The plaintiff objected to the admissibility of some of the examination for discovery evidence of Mr. Hidasi, evidence that Mr. Hidasi points to in support of his position. All of the impugned discovery evidence is exhibited to an affidavit of the plaintiff’s counsel’s legal assistant. As I understand the objection, it is that the questions in dispute were reproduced and exhibited to the legal assistant’s affidavit because they appear on pages of the transcript that contain other questions and answers which the plaintiff wishes to rely on. I pause to note that while that may be so, the affidavit itself does not contain a statement to that effect. On the first day of the hearing the plaintiff’s counsel provided the defendant with a list of specific discovery questions that he wished to rely on. The questions and answers to which objection is taken are not on that list.

[7] I am satisfied that the questions and answers are admissible, and that no prejudice inures to the plaintiff as a result. They are admissible because the plaintiff put them in evidence. As to the notice of the specific questions and answers the plaintiff wished to rely on, it does not alter of the foregoing. If it was intended to be a notice as contemplated by Rule 9-7(9), it was not filed within the time limited under Rule 8-1(8). It is therefore of no moment. As to the question of prejudice, the only reasonable inference to be drawn from the plaintiff’s notice of application is that the impugned evidence formed part of the plaintiff’s case. The defendant could have addressed the matters about which he gave evidence on discovery in his affidavit evidence. He may not have, I infer, because he concluded it was unnecessary given that the plaintiff had already put those matters into evidence. In any event, if the discovery evidence is excluded, fairness would require an adjournment to allow the defendant to supplement the evidence given the changed face of the evidentiary record he had reasonably thought would form the basis for the hearing. All that would have been accomplished in the result is that the evidence that is contained in the discovery answers would be before the court in the form of an affidavit.

This case is also worth reviewing for the Court’s discussion of the legal principle of ‘spoiliation’ at paragraphs 30-33 of the reasons for judgement.

Plaintiff Unsuccessfully Sues for Being Run Over By Car While Cleaning It

Written by admin on April 21, 2011. Posted in ICBC Liability (fault) Cases, Occupier's liability claims, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing a personal injury lawsuit with a fairly unusual fact pattern.
In this week’s case (Biggan v. Fall) the plaintiff by counterclaim was employed as a housekeeper. She was asked to clean her employers car so it could be prepared for sale. The circumstances of the incident were as follows:

[8] She parked the car on the driveway and said she felt the rear wheels come in contact with the rock or piece of firewood. She put the manual transmission in first gear, applied the hand brake and got out. The car has an alarm system which sounds if the keys are left in the ignition, and as a result of hearing the chimes, she reached in, took the keys from the ignition, and placed them on the seat of the car. She then started to walk back to the house to get some cleaning equipment. She walked behind the car and as she did so, she noticed it was starting to roll backwards. She moved out of the way and the car continued rolling backwards down the driveway towards the road. Ms. Fall does not recall anything that happened after that point.

[9] When the car reached the Shawnigan-Mill Bay Road, it collided with the vehicles driven by Biggan and Leask. The Biggan and Leask vehicles then collided with each other. Although Ms. Fall does not recall doing so, it is apparent she ran beside the Scott vehicle as it rolled down the driveway. A witness to the accident, Mr. Brian Mellings, observed her running beside the car and saw her become involved in the collision. She somehow ended up under the Biggan vehicle and she suffered serious injuries.

She claimed the vehicle owner was liable for the crash pursuant to the Occupiers Liability Act. Mr. Justice Bracken disagreed and dismissed the claim. In doing so the Court provided the following reasons:
[29] Ms. Fall says the Scotts, as occupiers of the premises, owed her a duty to take reasonable care to ensure she was reasonably safe in using the premises. She argues the risk of the car rolling down the driveway and her action in running beside it in an attempt to gain control of the car was a foreseeable risk of moving the vehicle out onto the driveway in the first place. Ms. Fall says the risk of the accident occurring as it did was a reasonably foreseeable risk that should have been anticipated by the Scotts and they are therefore liable for failing to warn her not to use or move the vehicle: Rendell v. Ewert (1989), 38 B.C.L.R. (2d) 1 and Chretien v. Jensen, [1998] B.C.J. No. 2938…

[46] There is nothing to suggest either Lloyd Scott or Stewart Scott were aware of any defect in the motor vehicle, nor is there any evidence to establish that there was any defect in the vehicle that could have caused it to roll backwards down the driveway. Finally, in reacting as she did by attempting to follow the vehicle down the driveway, she assumed all risk of the injury that in fact resulted.

[47] I am not able to find any breach of their duties under the Occupiers Liability Act by the Scotts and the action on Ms. Fall’s counterclaim is dismissed. The Scotts are entitled to their costs.