Tag: occupier’s liability lawsuits

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.

BC Court of Appeal Finds There is only a "Single Standard" Under the Occupier's Liability Act


Reasons for judgement were released today by the BC Court of Appeal discussing the standard of care for Occupier’s Liability lawsuits in BC.
In today’s case (Charlie v. Canada Safeway Limited) the Plaintiff slipped and fell near a display of flowers while shopping at Safeway in Duncan, BC.  The flowers were kept in water and when customers picked up the flowers for purchase they sometimes “could drip (water) on the floor”.  She was injured and sued for damages.
During her fall the Plaintiff knocked over one of the buckets of flowers spilling a considerable amount of water on the floor.  The Plaintiff could not offer direct evidence that dripped water made her fall but inferred that this was the cause of her fall.  At trial the Court refused to make this inference and dismissed the lawsuit.  The BC Court of Appeal dismissed the appeal finding there was no error in law in the Court refusing to draw the same inference the Plaintiff made.
The Plaintiff went further and argued that “there are two types of occupiers’ liability cases:  “due diligence cases” and “unsafe conditions cases”. She accepts that in “due diligence” cases, a system such as the one in place in the case before us would satisfy the requirements of the Act. She says, however, that where the occupier has created an “unsafe condition”, there is a greater duty to take care to protect visitors to the premises from risk.
The Court of Appeal rejected this argument and in doing so made it clear that there is only one standard of care to be applied in BC Occupier’s Liability lawsuits.  The Court provided the following reasons:
[19] I do not agree with the plaintiff’s contention that different standards of care apply to different types of hazards on an occupier’s premises. The Occupiers Liability Act establishes a single standard of care, “a duty to take that care that in all the circumstances of the case is reasonable to see that a person … will be reasonably safe in using the premises.”  While the extent of a danger posed by any particular hazard will obviously be an important factor in assessing the reasonableness of an occupier’s response to it, I do not think that it is helpful to define different types of hazards that entail different standards of care.

Produce Vendor Found Liable For Slip and Fall Injury Involving Dropped Grape


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a produce vendor liable for injuries sustained when a shopper slipped and fell on a dropped grape.
In today’s case (Davis v. Kin’s Farm Market) the 75 year Plaintiff was shopping in Lynn Valley Mall in North Vancouver.  As he walked “past the fruit and vegetable display tables located outside of Kin’s Market, he slipped and fell on a green grape“.
The grape was just outside of Kin’s Market in an area that was “encroaching somewhat into the marbled tiles forming the mall pedestrian corridor“.   The Plaintiff sued the owner of the Mall and the produce store.
The Defendants argued that the Plaintiff was at fault for his injuries and that they were not responsible because they had a reasonable system to deal with hazards on the floor.  However, this was contradicted by a witness who gave evidence that “several hours after the ambulance took (the Plaintiff) away”  there were “more grapes on the marble tiles immediately outside the store”  and that after bringing these grapes to the attention to the employee in charge of Kin’s Market “this employee took no steps to clean up the grapes“.
Madam Justice Bruce went on to find both Defendants liable for the Plaintiff’s injuries.  Specifically the Court reasoned as follows:

[39] In addition to having no reasonable system of inspection and maintenance in place to address spills from the bins and display tables outside the store, I find that the employees were not complying with the standards set by their employer on the day of the accident. Ms. Janda’s evidence tends to show that the employees of Kin’s Market were lax in regard to the cleanliness of the areas surrounding the bins. While evidence of a failure to comply with the cleaning policies well prior to the date of the accident cannot be used to infer such a failure on the date of the accident, in this case there is evidence that just hours after Mr. Davis’ fall there were more grapes on the marble tiles adjacent to the bins displayed by Kin’s Market. This evidence suggests that the employees of Kin’s Market had rather poor powers of observation. Moreover, the fact that on two occasions on June 5, 2005, employees of Kin’s Market took no steps to clean up fallen grapes after the spills were brought to their attention strongly suggests that they took no responsibility for any produce that landed beyond the brick tiles.

[40] Lastly, Kin’s Market argues that even if it failed to meet the standard of care owed as an occupier, the fact that the Owner met this standard removes any responsibility they may have for the accident. I am unable to accept this argument. Where there are two occupiers of premises, each of them owes a duty of care to persons invited to enter the premises. The fact that the Owner may rebut a prima facie breach of the Act does not obviate the necessity for Kin’s Market to also satisfy the two pronged test articulated by the Court of Appeal inAtkins. Permitting grapes to remain on the floor as a hazard is negligent absent proof that a reasonable system of maintenance and inspection was in place and being followed on the day of the accident. Kin’s Market has failed to satisfy this onus and it is irrelevant whether the Owner has led evidence that shows it met the required standard of care.

The Court went on to find that the Plaintiff was not at fault for falling reasoning as follows:

[60] Kin’s Market argues that Mr. Davis had an obligation to keep a proper look out for his own safety and to be aware of his surroundings: Gervais v. Do, 2000 BCSC 1271, [2000] B.C.J. No. 1732. Kin’s Market points to Mr. Davis’ admission that his attention was not directed to where he was walking before he fell; rather, he was looking toward the Shoppers Drug Mart. He was familiar with the mall and could have avoided the fall had he been paying attention to the floor where he was walking…

[62] In my view, it is not reasonable to expect Mr. Davis to be staring at his feet as he walked through the mall towards the Shoppers Drug Mart. Had he positioned his head in a downward direction to detect possible hazards on the floor, Mr. Davis may have stepped over the grapes in his path; however, he may also have run into another mall patron possibly causing damage to himself and the other person. It is also understandable that Mr. Davis would not be cognizant of the risks associated with walking in the common area of the mall adjacent to Kin’s Market, particularly as he was three to four feet from the display tables. He was not inside the store where he may have been alerted to the possibility of produce that had fallen to the floor. Lastly, I find Mr. Davis’ circumstances are similar to that found by the Court of Appeal in Coulson. The tenants in the mall design their displays to attract customers’ eyes. They do not encourage patrons to keep their eyes on the floor ahead of their feet. As Bauman J. (as he then was) said in Dufty v. Great Pacific Industries Inc., 2000 BCSC 1474, [2000] B.C.J. No. 1988 at para. 44:

[44]      As to the issue of contributory negligence, it has been said many times, most recently by Justice Burnyeat in Coleman v. Yen Hoy Ent. et al, 2000 BCSC 276 [In Chambers], that while there is a duty on the plaintiff to be aware of her surroundings, it is not the case that she is required to “glue her eyes to the ground.”

Losing Your Case With Your Own Evidence – More on Effective Cross Examinations

One of the most powerful tools a trial lawyer has is cross-examination.  In cross examination a lawyer can pose leading questions forcing a witness to agree or disagree and in doing so the lawyer seeks to get admissions that help his client’s case or hurt his opponent’s case.
In pre-trial examinations for discovery a lawyer has the right to ‘cross-examine‘ the opposing party.  By that I mean a lawyer is permitted to control the examination with leading questions.  If done effectively damage can be done to the your opponents case.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, demonstrating the results of a persuasive cross examination.
In today’s case (Mann v. Rainsford) the Plaintiff was injured while viewing a neighbour’s open house.  As the Plaintiff was leaving the house she mis-stepped on a concrete slap (basically a step) along a pathway from the home to the sidewalk.  Having mis-stepped the Plaintiff fell and was injured.  She sued the home-owner claiming that this concrete slab was a hazard and that steps should have been taken to guard against this injury.
Mr. Justice Wilson of the BC Supreme Court disagreed and dismissed the Plaintiff’s lawsuit.   The Court noted that the Plaintiff’s injuries “were caused solely by her own inattention“.  The Court reached this decision largely by the Plaintiff’s own evidence which was given at examination for discovery.  The Plaintiff’s evidence clearly had a damaging impact on her case and the discovery exchange is worth reviewing for anyone learning about cross examination in personal injury lawsuits.  The damaging cross examination was as follows:

[29] The plaintiff explained the mechanics of the incident, at her examination for discovery, as follows:

92   Q  Tell me what you did when you left the house.

A   I walked out of the front door and I stepped down the first step.  And I remember I was looking at the garden.  And I tripped.  And I went to grab the handrail, but there was no handrail there and I fell forward down the step.

96   Q  You said you were looking at the garden?

A   Mm-hmm, yes.

97   Q  Which area of the garden were you looking at?

A   On the left-hand side coming out.

98   Q  So the right-hand side of the photograph, you were looking over that way?

A   Yes.

100 Q  You didn’t slip on anything, is that right?

A   No.

101 Q  And you didn’t trip on anything, did you?

A   No, there was no object there.

102 Q  You misstepped, is that right?

A   Yes.

128 Q  So you stepped off the landing onto —

A   The step, yes.

129 Q  — down the first step, and you did that fine.

A   Yes.

130 Q  So you got down onto, say, the second landing?

A   Yes.

131 Q  And then you went forward?

A   Yes.

132 Q  And then what happened?

A   I tripped on that step, as far as I can remember.

133 Q  So you were looking at the garden to the left?

A   Yes.

137 Q  Why did you fall?  Do you know why you fell?

A   It wasn’t a normal configuration of steps going down, so I missed it.

138 Q  You just went up it 30 minutes earlier.

A   That’s correct.

139 Q  So you knew that there was a step and a landing and another step and a landing from when you just went up 30 minutes earlier, right?

A   I saw it as I went up, but I wasn’t looking at the stairs as I came down, because I don’t normally have to look and check to see where the steps are when you’re going down.

140 Q  You knew that this isn’t a staircase like at your house.  You knew that when you got there and you knew that when you went to go up into the house, right?

A   I saw it when I went up.

141 Q  So you knew that there were landings in between the steps and that you would have to walk to get to the next step, right?

A   Yes.

142 Q  I’m just trying to find out what was surprising to you that it was the same on the way out as it was on the way in.

A   I guess I hadn’t recalled the configuration when I left.

144 Q  So it was the same on the way out as it was on the way in?

A   Yes.

145 Q  It was simply just that you misstepped when you left the house, isn’t that right?

A   That’s correct, yes.

When preparing for discovery or trial you need to know that the defence lawyer will try to harm your case and must be prepared for a leading cross examination.  If not, you risk causing significant and possibly preventable damage to your claim.

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