IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Vaughn v. Kelowna Speedometer Ltd., |
| 2011 BCSC 542 |
Date: 20110429
Docket: 86963
Registry:
Kelowna
Between:
William Alan
Vaughn
Plaintiff
And
Kelowna
Speedometer Ltd. and Blue Gator Bar & Grill 2005 Ltd.
Defendants
Before:
The Honourable Mr. Justice S.J. Shabbits
Reasons for Judgment
Counsel for the plaintiff: | S.W. Turner |
Counsel for the defendants: | D.R. Lewthwaite |
Place and Date of Chambers Hearing: | Kelowna, B.C. January 27, 2011 |
Place and Date of Judgment: | Kelowna, B.C. April 29, 2011 |
BACKGROUND
[1]
William Alan Vaughn was the victim of an assault that occurred in
Kelowna on August 10, 2008. His assailant or assailants have not been
identified. The assault occurred at the rear of the defendants establishment,
known as the Blue Gator Bar and Grill.
[2]
Mr. Vaughn was assaulted in these circumstances. The Blue Gator is a
licensed premise. After paying a $5 cover charge, Mr. Vaughn spent the evening
of August 9, 2008 at the Blue Gator. Mr. Vaughn consumed one beer and a part of
a second over four hours. Mr. Vaughn had not consumed any other alcohol that
day. Mr. Vaughn left the Blue Gator through a side door shortly after midnight.
He stepped onto a side alley that leads to a main alley. Mr. Vaughan then
walked to the back of the Blue Gators parking lot in order to access the main
alley. The main alley behind the Blue Gator runs parallel to the street
fronting the Blue Gator. When Mr. Vaughn reached the back of the Blue Gator
property, he was assaulted from behind and seriously injured. The assault
occurred on the Blue Gators back parking lot or just beside it on the main
alley.
[3]
Mr. Vaughn lost consciousness. After lying on the ground for about an
hour, somebody apparently saw him and telephoned for an ambulance. After he was
assaulted, Mr. Vaughn was robbed of cash that he had on his person.
[4]
The Blue Gator staff did not patrol the area to the rear of its premise.
It has never done so. Other than the assault on Mr. Vaughn, neither the Blue
Gator staff nor the defendants have ever been advised by anyone of any other
incidents of assault at or near the rear of the Blue Gator.
[5]
Mr. Vaughns evidence is that he knows of no witness to the assault. He
had not been involved in any altercation inside the Blue Gator prior to his
leaving that evening. He does not know who might have assaulted him.
[6]
On January 13, 2010, Mr. Vaughn gave a statement setting out
the circumstances of the assault to an insurance adjustor. In that statement,
Mr. Vaughn says this: I turned left in the alley, which runs alongside the
building and it is my recollection that I took five or six steps. I was struck
on the back of my head and that is the last that I remember. I do not recall
seeing anyone else in the alley, when I left the bar. The next thing I recall
was having paramedics treating me for injuries I sustained.
[7]
On August 17, 2010, Mr. Vaughn was examined for discovery. He
testified as follows:
131 Q You are not able to give us any more
assistance than that?
A It
was dark and I dont even recall if there was one person, two, I dont know.
[8]
Mr. Vaughn did not elaborate any further about it being dark out.
[9]
On January 20, 2011, Mr. Vaughn filed an affidavit relating to
this application. He says this at paragraph 6: I recall that it was dark and
there did not appear to be any lighting in the back parking lot of the Blue
Gator.
[10]
A filed affidavit sworn on October 21, 2010 has two colour
photographs of the rear of the Blue Gator attached as exhibits. The affidavit
does not say when the photographs were taken. The photographs show exterior fixtures
for artificial lighting on the back of the Blue Gator. The affidavit does not
establish whether those light fixtures were there, or whether they were
illuminated, during the evening of August 9, 2008, nor does it contain
information as to the amount of illumination they might provide.
[11]
Mr. Vaughn sues the defendants in negligence. He relies on the Occupiers
Liability Act, the Liquor Control and Licensing Act and City of
Kelowna Zoning Bylaw No. 800.
DISCUSSION
[12]
This proceeding is by way of summary trial.
[13]
The plaintiff submits the lighting the defendants provided to the rear
of the Blue Gator was inadequate.
[14]
The plaintiff submits that the defendants are liable under the Occupiers
Liability Act R.S.B.C. 1996 c.337 for inadequate lighting in their back
parking lot and that the defendants were in breach of the lighting provision in
Kelowna Consolidated Zoning Bylaw No. 800, provision 6.8.2
[15]
Kelowna Consolidated Zoning Bylaw Number 800 includes this provision:
6.8.2 Site areas with public
access shall be lit in keeping with the principles of crime prevention through
environmental design and require site lighting as is necessary to encourage
pedestrian safety and allow surveillance from adjacent buildings and streets of
parking areas and walkways.
[16]
The plaintiffs sworn statement made on the eve of this hearing that it
was dark and there did not appear to be any light in the back parking lot does
not establish that the lighting was not reasonably adequate nor does it
establish that there was insufficient lighting about, including lighting from
other sources, to allow casual surveillance of the site where Mr. Vaughn was
injured from adjacent buildings and streets or parking areas or walkways.
[17]
The evidence before me is not complete enough to determine whether the
lighting was reasonably adequate or whether the lighting complied with the
zoning bylaw.
[18]
The plaintiff did not submit that the issue of liability should not be
determined on this summary trial. Nevertheless, I have considered whether
justice can be done by deciding liability at this hearing, given the insufficiency
of evidence about artificial lighting. I have concluded that this proceeding
should neither be referred to the trial list nor adjourned to give the parties an
opportunity of bolstering their evidence on this issue. That is because, in my
opinion, it has not been shown that inadequate lighting could have caused or
contributed to Mr. Vaughns injuries.
[19]
The Supreme Court of Canada discusses causation in Athey v. Leonati 1996
3 S.C.R. 458. The court holds that causation is established where a plaintiff
proves to the civil standard that the defendant caused or contributed to the
injury. It holds that the general, but not conclusive, tests for causation is
the but for test, which requires the plaintiff to show that the injury would
not have occurred but for the negligence of the defendant.
[20]
In his submissions, counsel for Mr. Vaughn conceded that the evidence on
this application could not establish the defendants negligence on the basis of
material contribution to the occurrence of injury, as explained in McGhee v.
National Coal Board 1972 3 All E.R. 1008 and following cases. It follows
that the but for test is of application in this case.
[21]
In Donaldson v. John Doe 2009 BCCA 38, Mr. Justice Frankel writes
for the British Columbia Court of appeal.
[22]
At paragraphs 52, 53 and 54, Mr. Justice Frankel discusses causation. He
writes as follows:
[52] To paraphrase what Major J. said in Stewart
(at para. 59), an equally compelling reason to dismiss this appeal flows from
the absence of proof of causation.
[53] A plaintiff must prove, on a balance of
probabilities, that the defendants impugned conduct actually caused the loss
complained off: Stewart at para. 60. To do that, the plaintiff bears
the burden of showing that but for the negligent act or omission of each
defendant, the injury would not have occurred: Resurfice Corp. v. Hanke,
[2007] 1 S.C.R. 333, 2007 SCC 7 at para. 21; see also: Bohun v. Segal,
2008 BCCA 23, 77 B.C.L.R. (4th) 85 at para. 53.
[54] In the present case,
the evidence admissible against Pacific Promotions and the Commodore is capable
of proving only that Mr. Briggs drank some beer at Oktoberfest, left the event
carrying a glass beer mug and, for some unknown reason, raised his arm,
injuring Mr. Donaldson with that mug. This, in my view, is not sufficient to
satisfy the but for causation test, as it would be speculation to infer that
alcohol was a factor in Mr. Briggss actions. In other words, even assuming
that the monitoring system at the Commodore was inadequate, the evidence is not
capable of proving, on a balance of probabilities, that Mr. Donaldson would not
have been injured had a proper system been in place.
[23]
In my opinion, the plaintiff has not shown that but for proper lighting
he would not have been injured. I agree with the submission that additional
lighting may have reduced the risk of an assault, but lack of lighting did not
cause the assault. The plaintiff could have been assaulted in daylight hours,
or assaulted farther down the alley. It is speculation to infer that lighting
was a factor in the assault occurring. Even assuming that the lighting at the
rear of the Blue Gator was inadequate, the evidence is not capable of proving,
on a balance of probabilities, that Mr. Vaughn would not have been injured had
proper lighting been in place.
[24]
Mr. Vaughn bears the burden of showing that but for the negligent act
or omission, the injury would not have occurred. There is no evidence on which
I would find that but for adequate lighting, the injury would not have occurred.
I am of the opinion that it has not been shown, on a balance of probabilities,
that a lack of lighting caused Mr. Vaughns loss.
[25]
Mr. Vaughn was assaulted after he left the defendants establishment. The
defendants serve alcohol to its patrons, and thereby assume the duty of care
owed by alcohol serving commercial hosts. That duty of care has been examined
in a number of cases, including Laface v. McWilliams et al 2005 B.C.S.C.
291.
[26]
In my opinion, the defendants did not breach the special duty of care
they owed to Mr. Vaughn as an alcohol serving commercial host. Mr. Vaughn did
not consume alcohol to excess. He was not impaired. He was not over served. He
was not injured in the premise.
[27]
Mr. Vaughn was assaulted outside the Blue Gator. There is no evidence
that his assailant or assailants were ever at the Blue Gator, or that the
defendants could have or should have exercised any control over them.
[28]
The plaintiff submits that had the Blue Gator staff been attentive, they
could have intervened to prevent the assault. The plaintiff submits that had
the defendants patrolled the parking lot area, the assault may not have
occurred.
[29]
The defendants have never patrolled the parking lot behind the Blue
Gator. In his affidavit No. 1, Larry Smith, an operating partner of the Blue
Gator, says this at paragraph 5:
At no time, apart from the
incident in question, have I ever been informed of anyone being assaulted or
preyed upon by others at or near the rear of the Blue Gator premises. I am
personally present at the Blue Gator on a daily basis and had such incidents of
assault ever occurred, I am confident they would have come to my attention
either from patrons or staff.
[30]
Mr. Smith deposes that neither he nor his staff patrol the area to the
rear of the Blue Gator and the rear alley.
[31]
The failure of the Blue Gator to patrol the parking lot or the alley
area behind its premises cannot, in my opinion, impose liability upon the
defendants.
[32]
The plaintiff has not shown that it was unreasonable for the defendants not
to have such patrols. Mr. Smiths evidence, which is not challenged, is that
there is no reason to have such patrols. Furthermore, even if the defendant had
implemented patrols prior to Mr. Vaughn being injured, it is a matter of
speculation as to whether that would have prevented the assault. There is no
reason to think that a patrol would have been taking place at the exact time as
when Mr. Vaughn left the Blue Gator. A system of patrols would have reduced the
risk of somebody being assaulted, but it would have not eliminated the risk. The
lack of patrols did not cause the assault; the assault was caused by the
actions of others.
[33]
I agree with the defendants submission that the plaintiffs claim must
fail upon the issue of causation. Nothing done by the Blue Gator caused Mr.
Vaughns injuries.
[34]
The plaintiffs claim is dismissed.
[35]
Unless there is some reason to speak to costs, the defendants are
entitled to costs on scale B.
Mr. Justice S.J. Shabbits