In Simmons v. Yeager Property Inc., the Plaintiff was injured when tripping over a difference in height between a concrete landing and a patio deck. The Defendant had a sign which read, “watch your step please”, however the words “watch step” were faded, and were difficult to read. Although the Plaintiff was mostly liable for the accident, the Court did find the Defendant to be 25% liable for allowing some of the words on the sign to fade. The British Columbia Court of Appeal would eventually overturn this ruling. Please click here for the judgment.

 

[37] In my opinion, the presence of white paint demarcating the patio step was not a sufficient warning, as the patio step was quite different in nature from the both the front and back stairs, and it was also sloping along its edge so that its height varied from two to four inches. In addition, with a patio table and chairs in front of it, the entire painted edge may not have been visible to customers approaching from the back stairs as the plaintiff did. As the defendants must have considered, it was necessary to specifically alert customers to the presence of this step with warning signs. Here, the warning sign that was most visible to the plaintiff was ineffective due to wear and tear.

[38] The plaintiff says that the measures taken by the defendants after this incident, which were easily done and inexpensive, show that the previous measures were insufficient to make the premises reasonably safe. As with evidence of prior safe use, evidence of what is done after the fact is also a factor to consider in assessing whether the area at the time of the incident was reasonably safe. After the fact conduct is not an admission of negligence, but it may establish that measures were taken which converted an unsafe area into a reasonably safe one, and it may also establish the ease or difficulty with which a risk may have been avoided: see Cahoon at para. 21; O’Leary v Rupert, 2010 BCSC 240 at paras. 47-48.

[39] In re-painting the edges of all stairs and the patio step in yellow paint, and replacing the red, black and white warning signs with yellow and black signs, the defendants enhanced the safety of the premises. However, other than replacing the faded warning sign, I do not consider that these changes show the previous measures to have been insufficient to alert customers to the change in level at the patio step.

 

[40] I find that the ineffective warning sign is evidence of a prima facie breach of the Occupiers Liability Act. In these circumstances, the defendants may refute the breach by leading evidence that they had put into place a reasonable system of inspection and maintenance that was being followed at the time of the accident: Newsham at para. 131, citing Atkins v. Jim Pattison Industries Ltd. (1998), 61 BCLR (3d) 183; and Davis v Kin’s Farm Market (Lynn Valley), 2010 BCSC 677.

In Paquette v. School District No. 36 (Surrey), the Plaintiff was a 12 year old child who had been playing on the school grounds after normal school hours. Along with another student, the Plaintiff climbed up a tree that was close to the school, and then climbed onto the roof of the school. The Vice Principal heard them, and told them to get down from the roof. The Plaintiff fell approximately 20 feet when attempting to do so. The Plaintiff sustained injuries, and through his Litigation Guardian commenced litigation against the school, alleging that the school was negligent, and breached its’ duties under the Occupiers Liability Act. The Plaintiff submitted that he was partially responsible for the accident and his injuries, however submitted that the Defendant should be 60-75% liable. The Defendant denied liability altogether. The Court held the Defendant to be 75% liable.

 

[38] Mr. Hurd’s evidence establishes that this school had a problem with youth getting onto its roof. The numerous incidents he recalls confirm that this problem was known to the principal, teachers, maintenance workers, students and their families and others. Despite this, there is no evidence that the defendant required anyone to turn their mind to whether any trees were growing too close to the school roof and providing the access that allowed for this problem to persist.

[39] In making these findings, I am mindful that the defendant is not expected to be perfect and that it would be impossible to completely prevent anyone getting on the school roof other than in an authorized fashion. However, taking into account all the circumstances of this case, it was unreasonable that the defendant allowed the cherry tree to grow so close to the school’s roof.

[43] I am not suggesting that the inherent nature of childhood means an occupier is liable for anything that a child might do. As always, each case must be assessed in context, reviewing all the circumstances.

[44] Given the circumstances at this particular school, a reasonable person would foresee that the cherry tree (or any other tree in similar proximity to the school roof) might be used by kids to climb onto the roof. As such, the defendant is liable for not taking reasonable actions to prevent children accessing the school roof via the cherry tree.

In Dandell v. Thompson Rivers University, the Plaintiff was a student who slipped and fell when he took a shortcut down an icy hill rather than walking on a properly maintained sidewalk. At trial, the Plaintiff alleged that the Defendant did not exercise reasonable care to ensure that the Plaintiff was reasonably safe under the circumstances.The Plaintiff suffered leg and ankle fractures, and brought a claim against the Defendant for non-pecuniary damages, as well as other forms of damages. The Supreme Court held that the University had discharged its’ duty, and that the Plaintiff had assumed the risk by walking where he did. The British Columbia Court of Appeal dismissed the Plaintiff‘s appeal.

[11] I am unable to accept Mr. Dandell’s contention that, by virtue of what was said in Waldick, the university was, as a matter of law, required to eliminate the risk of a student being injured as he was. In Waldick, the court was concerned with an injury that occurred as a consequence of an occupier’s failure to provide any safe access to a home. The only access at the time of the incident in question was icy, slippery, and covered with a dusting of snow. No one could access the home without being exposed to a risk of the injury that was suffered. As is made clear in the passage quoted above, the legislation requires positive action to remove or minimize the risk of injury, not in every instance but where the circumstances warrant. It is the circumstances in any given instance that govern what the occupier must do to take reasonable care to see that those on the premises will be reasonably safe.

[12] Here there was a well-maintained access to the building the university intended students like Mr. Dandell to use rather than taking the shortcut. It would have taken him only 11 more seconds. Far from being arguably irrelevant, the university’s positive action to maintain a safe access to the building was clearly a proper and significant factor in the judge’s application of the legal standard of reasonableness in all of the circumstances.

[13] The trial decisions Mr. Dandell cites to support his contention that an alternative access is not necessarily conclusive of the occupier’s duty having been discharged appear to me to be instances where the risk of injury, or the alternative access, although known to the occupier, was not apparent to the person injured. Kinnear v. Canadian Recreation Excellence (Vernon) Corp. (February 24, 2011), Vernon Docket 39746 (B.C.S.C.), is an example of an alternative access (40 seconds longer) being largely conclusive of the proper discharge of an occupier’s duty in circumstances somewhat similar to those leading to the injury Mr. Dandell suffered. The existence of an alternative access, like the extent to which the risk taken was apparent, must be a part of all the circumstances to be considered in applying the legal standard in any given case where a choice of access – one safe, the other not – is made.

 

In Fulber v. Browns Social House Ltd., the Plaintiff was injured when she slipped and fell at a restaurant. She had been wearing high heel shoes, and slipped on the hardwood flooring, breaking her ankle. She could not later say what she had slipped on, just that she had slipped and fell. The Court noted that the Plaintiff could not identify the hazard she fell on, and, as such, her belief that she must have slipped on something was based on an inference, something the Court stated was not sufficient to prove that the Defendant was negligent.

[48] The evidence does not establish that there was any hazard on the floor that caused Ms. Fulber to fall, whether it was a liquid or another foreign substance. Neither does the evidence give rise to a reasonable inference that there was liquid or another foreign substance on the place that Ms. Fulber fell.

[49] While the place that she fell was relatively close to the bar, it was a matter of feet from the serving area. It is highly unlikely that a drink would slosh all the way from the serving area to that area on the floor. While it may be possible that there have been times that some liquid has fallen in the place where Ms. Fulber fell, on all the evidence I must conclude that there was not a hazard in the place where Ms. Fulber fell.

[50] As a result, I must allow Rumpel’s application. I find that Ms. Fulber has failed to establish that Rumpel is liable for the injuries from the fall and I must dismiss her claim.

 

In Simmons v. Yeager Property Inc., the Plaintiff was injured when tripping over a difference in height between a concrete landing and a patio deck. The Defendant had a sign which read, “watch your step please”, however the words “watch step” were faded, and were difficult to read. Although the Plaintiff was mostly liable for the accident, the Court did find the Defendant to be 25% liable for allowing some of the words on the sign to fade.

 

[37] In my opinion, the presence of white paint demarcating the patio step was not a sufficient warning, as the patio step was quite different in nature from the both the front and back stairs, and it was also sloping along its edge so that its height varied from two to four inches. In addition, with a patio table and chairs in front of it, the entire painted edge may not have been visible to customers approaching from the back stairs as the plaintiff did. As the defendants must have considered, it was necessary to specifically alert customers to the presence of this step with warning signs. Here, the warning sign that was most visible to the plaintiff was ineffective due to wear and tear.

[38] The plaintiff says that the measures taken by the defendants after this incident, which were easily done and inexpensive, show that the previous measures were insufficient to make the premises reasonably safe. As with evidence of prior safe use, evidence of what is done after the fact is also a factor to consider in assessing whether the area at the time of the incident was reasonably safe. After the fact conduct is not an admission of negligence, but it may establish that measures were taken which converted an unsafe area into a reasonably safe one, and it may also establish the ease or difficulty with which a risk may have been avoided: see Cahoon at para. 21; O’Leary v Rupert, 2010 BCSC 240 at paras. 47-48.

[39] In re-painting the edges of all stairs and the patio step in yellow paint, and replacing the red, black and white warning signs with yellow and black signs, the defendants enhanced the safety of the premises. However, other than replacing the faded warning sign, I do not consider that these changes show the previous measures to have been insufficient to alert customers to the change in level at the patio step.

 

[40] I find that the ineffective warning sign is evidence of a prima facie breach of the Occupiers Liability Act. In these circumstances, the defendants may refute the breach by leading evidence that they had put into place a reasonable system of inspection and maintenance that was being followed at the time of the accident: Newsham at para. 131, citing Atkins v. Jim Pattison Industries Ltd. (1998), 61 BCLR (3d) 183; and Davis v Kin’s Farm Market (Lynn Valley), 2010 BCSC 677.

The Occupiers’ Liability Act is the relevant legislation in British Columbia dealing with occupiers’ liability.

 

GENERAL PRINCIPLES of LAW

 

In Foley v Imperial Oil Limited, the British Columbia Court of Appeal upheld a trial decision that had found the Defendant liable for a slip and fall matter. The Court of Appeal provides a summary of the legal principles involved in such matters.

 

[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 in Kayser v. Park Royal Shopping Centre Limited 1995 CanLII 655 (BC CA), (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 CanLII 1140 (BC CA), (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. 

 

In Lennox v. New Westminster (City), the Plaintiff was injured while walking on a city sidewalk. Her case was dismissed at the trial level, however the Plaintiff appealed, arguing that the jury was not given proper instructions by the trial judge. The Court of Appeal agreed, and ordered a new trial, holding that it was an error for the trial judge to have instructed the jury that the Plaintiff must prove city employees were negligent with respect to BOTH written and unwritten policies, when either one or the other would have been sufficient.

 

[27]         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.

 

[32]         The judge repeated this theory, referring to the respondent’s written and unwritten policies, and then instructed them:

 

The sole question you are asked to answer is, was their negligence on the part of the city’s employees in carrying out their operational responsibilities in accordance with their written and unwritten sidewalk inspection and maintenance policies. I know I have repeated that, but I have given you the written question.

 

[Emphasis added.]

 

[33]         It is not apparent from the record whether the jury was permitted to take the written charge with them into the jury room.  In his instructions to the jury, the trial judge directed the jury that “The official charge, and the one you must follow, is the one I give you orally, and not the one that is written, should there be any differences between them.”

 

[34]         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.

 

[37]     In Laidlaw v. Couturier, 2010 BCCA 59 (CanLII), 2010 BCCA 59, this Court considered the correctness of a question put to a jury in the context of the judge’s overall charge.  The jury there found that the defendant was liable and caused the plaintiff’s injuries.  It was then required to consider the plaintiff’s original position and the effect that position had in percentage terms on the assessment of damages payable by the defendant.  The jury’s award reflected acceptance of the defendant’s theory that the plaintiff’s original position included a marked propensity for depression that significantly impaired his ability to work.  However, the conditions from which the plaintiff suffered, and their concomitant symptoms, were not capable of reduction to a single measurable risk. The degree to which each condition might have affected him was not necessarily identical.

 

[39]         At para. 53 Kirkpatrick J.A. said:

 

It must be said that the second portion of the trial judge’s written instructions did not mirror the wording in question 3.  However, it stands to reason that by the time the jury was completing its deliberations, their focus must have been on the question sheet.  Question 3 is clear in its terms but, unfortunately, incorrect in its legal effect. In my view, it amounts to misdirection.

 

I am driven to a similar conclusion in this case.  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.

 

[40]         I would therefore accede to the first ground of appeal, and order a new trial.

In Charlie v Canada Safeway Limited, the Court of Appeal confirmed that there is only a single standard of care in occupiers’ liability cases.

 

[18] The plaintiff says, further, that the chambers judge erred in finding that the sweep and inspection policies of the store were adequate to meet the requirements of the Occupiers Liability Act. She contends 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. In support of this argument, she cites Elder v. Westfair Foods Ltd.,2001 ABPC 94 (CanLII), 2001 ABPC 94 and Stonechild v. Westfair Foods Ltd., 2001 SKQB 466 (CanLII), 2001 SKQB 466.

 

[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.

 

In Schray v. Jim Pattison Industries Ltd., the Plaintiff slipped and fell in a grocery store owned and operated by the Defendant. Defence counsel’s application for summary dismissal was rejected, with the Court commenting:

 

[21]

 

[6]        The Act does not create a presumption of negligence against an occupier whenever a person is injured on the premises.  To establish liability, a plaintiff must point to “some act (or some failure to act) on the part of the occupier which caused the [plaintiff’s] injury”: Bauman v. Stein (1991), 78 D.L.R. (4th) 118 at 127 (B.C.C.A.).

 

[7]        A similar test applies under the common law. 

 

[8]        An occupier’s duty of care does not require the occupier to remove every possibility of danger.  The test is one of reasonableness, not perfection.  Thus, an occupier may avoid liability if it establishes that it had in place a reasonable system of inspection:  Carlson v. Canada Safeway Ltd. (1983), 47 B.C.L.R. 252 (C.A.). 

 

[9]        The plaintiff also bears the burden of proving that the hazard in question caused the injury: Keraiff v. Grunerud (1990), 43 B.C.L.R. (2d) 228, 67 D.L.R. (4th) 475 (C.A.).

 

[10]      An occupier’s duty under the Act in relation to slips and falls in grocery stores was described as follows by Trainor J. in Rees v. B.C. Place (25 November 1986), Vancouver C850843 (B.C.S.C.) (quoted with approval by Hutcheon J.A. in Coulson v. Canada Safeway Ltd. (1988), 32 B.C.L.R. (2d) 212 at 214, [1989] 2 W.W.R. 264 (C.A.)):

 

The proceedings are brought under the Occupier’s Liability Act and that Act provides that an occupier has a duty to take that care that is reasonable in all the circumstances of the case to see that a person, in using the premises, will be reasonably safe.

 

The first requirement to satisfy that obligation is to take the kind of steps that were taken by the Defendants here to put into place a system to safeguard against dangerous substances being allowed to remain on the surface of the concourse.  And then secondly to be sure that there was compliance by the people who were carrying out that responsibility with the system in place.

[Emphasis added.]

 

[36]           In fact, a review of the cases provided on behalf of the defendants that deal specifically with occupier’s liability issues, as opposed to those dealing with procedural aspects of Rule 18A, indicate that all but one arise from trials on the merits as opposed to summary judgments.  The exception, Lamont v. Westfair Properties (Pacific) Ltd., 2000 BCSC 406 (CanLII), 2000 BCSC 406, is factually distinguishable in light of the finding by McEwan J. at para. 16 as follows:

 

While I have not exhaustively recounted the evidence, I am satisfied that the defendant has proved that throughout the store there were systems in place to periodically sweep the floors of debris and spillages.  I am further satisfied that in the relevant area of the store, the front end, the defendant has established overlapping systems of inspection at the relevant time and date.

 

[Emphasis added.]

The latter comment as it relates to compliance with a maintenance system may not properly be made in the present case.