(Update March 22, 2012 –The case discussed below was subsequently dismissed at the new trial ordered by the Court of Appeal. You can access the reasons for judgement here)
Reasons for judgement were released this week by the BC Court of Appeal ordering a new trial following the dismissal of a trip and fall lawsuit.
In today’s case (Lennox v. New Westminster (City)) the Plaintiff was seriously injured while walking on a municipal sidewalk. She alleged that she tripped because of “a discrepancy in the elevation between two panels of the sidewalk that had apparently shifted due to the roots of a large tree“. She claimed the City was negligent and sued for damages. A jury dismissed her case. The Plaintiff appealed arguing the verdict was not reasonable and that the jury was misdirected by the trial judge.
The BC Court of Appeal found that while there evidence to justify the Jury’s verdict, a new trial was warranted because of the presiding judges directions to the Jury. Specifically the judge charged the jury that “The plaintiff must prove that the city’s employees negligently carried out their responsibilities under the city’s written and unwritten inspection and maintenance policies.”
The BC Court of Appeal found this to be a fatal error as either a breach of the City’s written or unwritten policies could have constituted negligence. In a 2-1 split the BC Court of Appeal ordered a new trial with the majority providing the following reasons:
 The question chosen by the trial judge in this case referred to the respondent’s written and unwritten policies in a conjunctive manner, leaving the potential for members of the jury to believe that the plaintiff’s case would have to fail, unless she proved a breach of both as opposed to either policy. It was unnecessary for the appellant to establish a breach of both the written and the unwritten policies in order to succeed in her claim in negligence, and a misdirection amounting to an error in law results, if that is what the jury question required…
 While it is true that the trial judge instructed the jury on more than one occasion that the appellant’s case was argued in the alternative; that she asserted a breach of both the written and the unwritten policies, I do not consider that his summary of the appellant’s alternate theories of her case overcomes the potential that the single question asked of the jury may have caused them to conclude that the appellant had to establish breaches of both the written and the unwritten City policies in order to succeed…
As was the case in Laidlaw, the trial judge’s charge did not mirror the wording in the single question asked of the jury, and again, as in Laidlaw, the charge was inconsistent, here, as to whether the plaintiff needed to prove a breach of one or both of the respondent’s policies. By the time the jury was completing its deliberations, their focus must have been on the question, which is clear in its terms but, unfortunately, had the potential to mislead them as to what the plaintiff needed to prove in order to succeed. It is impossible to determine with confidence that the jury had understood its task in deciding if the respondent’s employees were negligent in carrying out their operational responsibilities in accordance with either, as opposed to both of the respondent’s written and unwritten policies.
 I would therefore accede to the first ground of appeal, and order a new trial.
Madam Justice Smith, in dissenting reasons, stated the charge was nothing more than a “latent ambiguity” and that a new trial was not warranted.