IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110620

Docket: 9072

Registry:
Rossland

Between:

Deborah Joyce
Erwin

Plaintiff

And

Richard Lloyd
Helmer and Douglas Carey Helmer

Defendants

Before:
The Honourable Mr. Justice McEwan

Ruling on a Motion for Judgment

[1]            
The defendants apply for dismissal of this action pursuant to Rule 9 – 7(2).

[2]            
The action is for damages pursuant to the Occupiers Liability Act.

[3]            
On August 26, 2006 the plaintiff attended a wedding at a rural property
near Pemberton. An outdoor dance floor had been constructed in a farmer’s field.

[4]            
At the end of the evening when the plaintiff was leaving, she, along
with three other people, walked from the site of the reception to the area
where vehicles were parked. This required those who attended to cross the field.
In doing so, the plaintiff fell and injured her ankle.

[5]            
The defendants’ evidence consisted of an affidavit from the counsel’s legal
assistant, attaching excerpts from a transcript of an Examination for Discovery
of the plaintiff. In it, she acknowledged drinking six or more glasses of wine
and falling once on or near the dance floor during the course of the evening.

[6]            
The plaintiff and her husband Keith Erwin, filed affidavits in response
to the application. The events canvassed in the Discovery were amplified
somewhat in the plaintiff’s affidavit:

5.         I agree that between shortly after 5:00 pm and our
departure at around 11:00 pm I drank, perhaps, 5 or 6 glasses of wine. The
glasses provided were small and flute shaped. I cannot say for certain how much
wine was provided in each glass by the servers. I would say that the serving
size was less than that provided in the standard glass at a restaurant meal, so
perhaps, between 3 or 5 ounces of wine per glass. Jugs of water were also
provided at the wedding and at the serving station.

6.         In addition to wine I drank a lot of water,
alternating water and wine throughout my attendance. I believe I consumed
between 8 to 10 glasses of water at the wedding.

7.         There was a dance floor set up on a raised
platform. Access to the dance floor was by way of wooden, unsecure steps with
no hand railing. I would describe the steps as “rickety” and they shifted back
and forth as other guests and I walked up and down them.

8.         On one occasion when my husband and I were leaving
the dance floor rather than lose my balance and fall, I sat down. I do not
contribute that to my consumption of alcohol or impairment but rather to the
shifting stairs.

9.         I do not agree that I was intoxicated or that my
balance was affected by alcohol at any time nor do I contribute my injury to
the consumption of alcohol. I am not a blood alcohol expert and my
understanding is that one can be legally intoxicated (for the purposes of
driving) after the consumption of one or two glasses of wine. I therefore
agreed at the Discovery that I may have been “legally impaired” on the night of
the wedding. I would not drive after consuming any alcohol and therefore further
agreed that I would not have driven that night.

10.       The wedding itself was held outside at a working
farm. On arrival there were signs on the driveway indicating that guests should
park in the field between the driveway and the house. We parked perhaps 30 feet
from the driveway.

11.       The parking area provided by the hosts was grass
and weed covered and seemed to have been a working farm plot or field at one
time. There was no lighting for the parking area after dark. There were no
signs or other warnings posted or otherwise provided.

12.       I was wearing a three strap sandal with a low wedge
solid heel. Prior to the wedding I had owned the sandals for three or four
years. They are a solid comfortable shoe that I have worn to other weddings. I
was also wearing a mid calf length sundress with a small jacket.

13.       We left the wedding at about 11:00 pm. It was dark
but clear. Walking back to our car I fell about half way between the driveway
and where we were parked, roughly 15 feet from the driveway.

14.       I stepped into a hole or deep furrow in the ground
that was concealed by the dark and ground cover. I twisted my right leg as I
fell to the ground. The pain in my right ankle was immediate and severe. My
ankle began swelling and once we got to the car I took off my shoe. The next
day I went in to Pemberton Emergency Room. As there was no doctor or x-ray
available they referred me to Whistler.

[7]            
Keith Erwin deposed as follows:

3.         We attended at the wedding with our friends Bob
Preston and his partner Penny. We all stayed at the same hotel and Mr. Preston
drove us to and from the wedding.

4.         I agree that my wife had 5 or 6 glasses of wine during
our stay at the wedding. I believe that she had her first glass of wine after
the ceremony concluded around 5 pm. It was a hot afternoon and we also drank a
lot of water. I agree that Debbie may have had up to 2 glasses of water for
each glass of wine she consumed.

5.         At no point through the course of the afternoon
and evening would I describe my wife as intoxicated or drunk. She had a glass
of wine after the ceremony and before the dinner, a glass or two during dinner
(roast lamb) and 2 or 3 glasses after dinner before we left at 11 pm.

6.         In addition to dinner and socializing, a dance
floor had been set up on a raised platform. Deborah and I danced a number of
times throughout the evening. The wedding was held outside on an acreage in a
three sided barn. The dance floor was set up on a raised platform. To get to
the dance floor we had to walk up some wooden steps that had been set up beside
the platform for that purpose. There was no hand or guardrail for the steps
which were quite wobbly.

7.         On one occasion while leaving the dance floor,
Debbie sat down on the steps. I did not attribute that to her consumption of
alcohol or impairment. Rather the stairs were quite wobbly and she momentarily
lost her balance.

8.         On arriving at the wedding, Mr. Preston had parked
in a field as directed by signs posted on the property. The field appeared to
be an old farm plot with grass and weed ground cover.

9.         It was dark when we left at around 11:00 pm, and
about half way between the driveway and our parked car my wife stepped into a
hole that we had not seen as a result of the ground cover and darkness. There
were no signs or cautions for us to watch our step and there was no lighting
for the parking area.

10.       I do not believe that
alcohol played any role in my wife falling and twisting her ankle.

[8]            
The parties proceeded as if the severance of liability from quantum could
be presumed. For reasons set out recently in Chun v. Smit, 2011 BCSC 412,
a party who opposes summary disposition of an action, where the question of severance
of quantum from liability arises, should address whether severance is
appropriate. The principles were taken from Bramwell v. Greater Vancouver
Transportation Authority, 2008 BCSC 1180, at para. 13-15. There must be
“extraordinary, exceptional or compelling reasons for severance of liability
from quantum”. The reasons for this standard respecting severance are set out
in Chun:

24.       An assessment of
whether there are exceptional circumstances justifying severance may turn in
part on whether the credibility of the parties is an integral part of both the
liability and quantum sides of the case, or whether, on the material placed
before the court, liability may be determined on the basis of the available
evidence, apart from the conflict in the parties’ evidence.

[9]            
This case inherently turns on credibility. While counsel for the
plaintiff has not objected to severance, the court must still be concerned with
the proper application of summary process and with the sufficiency of the
evidence on which it is expected to rule that a party will be deprived of a
full hearing.

[10]        
It appears from what is before the court that the precise nature of the
“hole” into which the plaintiff alleges she stepped will not be established
with any precision. There nevertheless appears to be a question to be tried on
the balance between the risk assumed by the plaintiff and the duty imposed on
the defendants to ensure that the premises were reasonably safe. There is
simply not enough material presently before the court to reliably make that
call. The defendant relies on the fact that the plaintiff had been drinking as
if that essentially speaks for itself, but the presence of drinking invitees on
the defendant’s premises was, on the material, foreseeable. There is little, if
any evidence as to what efforts, if any, were made to render the premises
reasonably safe for those who attended the wedding in those circumstances,
including, for example, whether paths were designated or lighting was supplied.

[11]        
The application is accordingly dismissed and, the whole matter will be
put on the trial list. The question of severance, if it arises again, should be
the subject of an application. Where credibility is a significant issue it
should generally be decided on the whole case, not on the fraction of it,
unless the test for severance has specifically been met. Otherwise the trier of
fact may be deprived of useful information relevant to the over-all assessment
of credibility.

[12]        
Costs will be in the cause.

  ”T.M.
McEwan”____________________

 The
Honourable Mr. Justice McEwan