IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Newsham v. Canwest Trade Shows Inc., |
| 2012 BCSC 289 |
Date: 20120228
Docket: S19587
Registry:
Chilliwack
Between:
Randyll Adam
Newsham
Plaintiff
And
Canwest Trade
Shows Inc.
formerly known as
Canwest Shows Inc., Darryl Rosengreen,
Canada Place
Corporation/Corporation Place Du Canada,
Vancouver
Convention & Exhibition Centre,
ABC Inc. and John
Doe
Defendants
Before:
The Honourable Mr. Justice Brown
Reasons for Judgment
Counsel for Plaintiff: | M. Cedrone |
Counsel for Canwest Trade Shows Inc. and Darryl Rosengreen: | J. D. McAfee R. M. Grist |
Place and Date of Hearing: | Chilliwack, B.C. December 15, 2011 |
Place and Date of Judgment: | Chilliwack, B.C. February 28, 2012 |
Table of Contents
III. Analysis: The
Contractual Claim
A. The
release of liability and indemnification clauses in the exhibitors contract
B. Plaintiffs
position regarding the Waiver Clauses in the exhibitors contract
C. Is
the Performance Contract an enforceable collateral contract?
E. Defendants
position on the enforceability of the Waiver Clauses
1. Plaintiffs
examination for discovery evidence
2. Discussion
of defendants position
3. Findings
on formation of the exhibitors contract
1. How
clearly did the contract draw attention to the Waiver Clauses?
2. How
easy to read were the Waiver Clauses?.
3. How
familiar was the plaintiff with the Waiver Clauses?
4. How
consistent are the Waiver Clauses with the general terms of the exhibitors
contract?
IV. Analysis: The
Negligence Claim
2. The
plaintiffs evidentiary onus on the standard of care
3. Has
the plaintiff established what condition or hazard caused the slip?
b) Location
of the alleged substance and slip
c) Plaintiffs
evidence on the cause of his slip
d) Evidence
regarding the nature of the alleged substance on the stage
e) Evidence
of Rick Villaneuva (the stage manager)
f) Evidence
of Darryl Rosengreen
g) Conclusion
on whether the plaintiff has established what hazard or condition caused his
slip
5. Conclusion
on standard of care
B. Causation
– has the plaintiff proved the defendants negligence caused his injury?
1. Medical
evidence relating to causation and the plaintiffs pre-existing knee injury
I.
Overview
[1]
The defendant, Canwest Shows Inc. (Canwest), organizes trade
exhibitions of various kinds, one of them a trade show called the Naughty
but Nice Sex Show (the Show), which is presented annually at the
Vancouver Convention and Exhibition Centre (VCEC). In 2007, the Show took
place between January 11 and January 14, 2007.
[2]
The defendant, Darryl Rosengreen, was retained by Canwest as an
independent contractor and agent to manage the Show for Canwest. Mr.
Rosengreens primary responsibility was managing exhibition booths at the Show.
He also handled the booth rental contracts Canwest offered to anyone who wished
to exhibit their wares and services to people attending the Show.
[3]
The VCEC and the owner of the premises where Canwest presented the Show are
no longer defendants. Randyll Newsham, the plaintiff, agreed to a consent dismissal
of his claim against those two defendants.
[4]
Therefore, these reasons address the claim of the plaintiff against
Canwest and Mr. Rosengreen in negligence. Mr. Rosengreen acted as an agent for
Canwest. Given the analysis of the plaintiffs claim applies in the same way to
both Mr. Rosengreen and Canwest, to make the reasons easier to follow, I will usually
refer only to Canwest as the defendant, although two defendants in fact remain
in the action.
[5]
The plaintiff employed himself as a male exotic dancer. To promote his
services as well as those of his female partner, he wished to rent two booth
spaces at the Show. In lieu of paying booth rental fees for the spaces, Canwest
and the plaintiff agreed the plaintiff would perform at the Show. This was
referred to as a contra agreement. Performances by a female exotic dancer
employed by the plaintiff were also a part of the contra agreement, but this
has no bearing on the case at bar.
[6]
The plaintiff claims that on the evening of January 13, 2007, he slipped
while performing on the stage Canwest provided for dancing and presentation purposes
at the Show. The performance during which the plaintiff alleges he slipped was
one of the scheduled dance performances he had agreed to provide in
consideration of Canwest waiving rental fees for booth spaces at the Show. He
alleges that while he was on the stage during his performance, he slipped on an
oily substance on the stage floor, thereby injuring his right knee. He asserts
the slippery substance allegedly causing his slip was a deposit of body paint
left on the stage by earlier exhibitors demonstrating its use. I should note
from the onset that I find the plaintiffs right knee did become symptomatic
sometime during or soon after his performance, but the cause of the symptoms
and his later need for medical treatment remains to be decided.
[7]
Although stated somewhat differently in the pleadings, the plaintiff is
essentially alleging the defendants:
a) failed
to take reasonable care to ensure that the stage on which the defendants knew
he would be performing would be reasonably safe from hazards so that he would
be safe using it;
b) allowed
the stage to remain in a hazardous condition during the plaintiffs performance;
c) failed
to examine, inspect, test or otherwise ensure the stage was in a safe condition
for his performance; and
d) failed
to give any warning to the plaintiff of the hazardous condition of the stage.
[8]
Canwest denies either it or Rosengreen were negligent in any respect.
[9]
The plaintiff claims compensation for pain and suffering and loss of
enjoyment of life, loss of income, past and future, special damages, cost of
care and recovery of past and future costs of health care services pursuant to
the Health Care Costs Recovery Act, S.B.C. 2008, c. 27.
[10]
The parties agreed to deal with the issues of liability separately from
damages. They also agreed to set the question of liability down for summary
trial pursuant to Rule 9-7 of the Supreme Court Civil Rules, B.C. Reg.
168/2009 [Civil Rules]. Therefore, these reasons deal only with
liability. Depending on the findings I make on liability, a trial on the quantum
of damages is tentatively scheduled for October 2012.
[11]
From from the parties opening statements, I gathered they had agreed the
determination of liability was suitable for summary trial. But counsel for the
plaintiff at the close of his submissions mentioned that conflicting testimony
of the plaintiff and defence witnesses showed liability should be set over and dealt
with at the same time as quantum of damages. Defence counsel objected to
plaintiffs counsel raising this at the end of the hearing. I have found,
however, sufficient evidence was before the Court upon which to give a decision
on liability. Applying Rule 9-7(15) of the Civil Rules, I find
that the case at bar does not present a situation in which the Court is
unable, on the whole of the evidence before the court on the application, to
find the facts necessary to decide the issues of fact or law. Nor is it a situation
in which I am of the opinion that it would be unjust to decide the issues on
the application. Accordingly, therefore, I will proceed to grant judgment on
the issue of liability in these reasons.
II.
Issues
[12]
There are several issues, all of which divide into two main streams: (a)
the nature and effect of the exhibitors contract and (b) standard of care and proof
of causation.
[13]
Regarding the exhibitors contract:
a) Is
the contra agreement between Canwest and the plaintiff, which stipulated that
the plaintiff would perform at the Show in exchange for booth space, an
enforceable collateral contract to the exhibitors contract to which the release
of liability and indemnity clauses in the exhibitors contract do not apply?
b) If
the contra agreement is not an enforceable collateral contract, what terms,
if any, are implied in the exhibitors contract by virtue of the plaintiffs
provision of performance services as consideration for booth space?
c) Do
the release of liability and indemnification clauses in favour of Canwest found
in the exhibitors contract afford Canwest a complete defence to the
plaintiffs claim in negligence?
[14]
Regarding standard of care and causation, if the release of liability
and indemnification clauses do not provide Canwest with a complete defence to
the plaintiffs claim in negligence:
a) Did
Canwest breach the duty of care it owed to the plaintiff; and
b) If
Canwest breached the duty of care it owed to the plaintiff, did the actions or
inactions of Canwest cause the plaintiffs injury?
III.
Analysis: The Contractual Claim
A.
The release of liability and indemnification clauses in the exhibitors contract
[15]
The reverse side of the exhibitors contract signed by the parties
contained a release of liability clause (Clause 14) and an indemnification
clause (Clause 15). I will refer to these two clauses collectively as the
Waiver Clauses in these reasons.
[16]
Canwest says that even if it was negligent and its neglect caused the
plaintiffs injury, both of which it denies, the Waiver Clauses bind the
plaintiff and shield Canwest from his claim for damages. In response, the
plaintiff argues the Waiver Clauses do not bind him because:
a) A
collateral contract that he alleges existed between him and Canwest specified
the terms of his performance services at the Show and rendered the Waiver Clauses
inapplicable to him in his capacity as a performer; and
b) Canwest
did not bring the Waiver Clauses to his attention in circumstances that he says
required it to do so.
[17]
I will discuss the collateral contract issue, after which I will
consider whether Canwest can rely on the Waiver Clauses to defeat the
plaintiffs claim in negligence.
1.
The exhibitors contract
[18]
Exhibitors wanting to participate in the Show must sign a contract with
Canwest, who typically sends it to them well in advance of the Show, thus giving
potential exhibitors the opportunity to read it before signing. The plaintiff
acknowledges his signature on the contract Canwest sent him, but says Canwest
did not bring the terms and conditions on the second page, including the Waiver
Clauses, to his attention.
[19]
The exhibitors contract is entitled 2007 Vancouver Exhibitor Contract
& Application. It specifically refers to the Naughty But Nice Sex Show.
The plaintiffs company name (Sly Strippers), first name, postal address and
email address appear in the exhibitors contract.
[20]
The contract states the plaintiff wanted to rent two booths. Over the
space where the contract specifies booth rental costs that individual exhibitors
would be required to pay, the word contra is handwritten. This denotes that
in exchange for the plaintiff and his partner performing for attendees at the Show,
Canwest would not charge any fee for the plaintiffs booth rentals.
[21]
The plaintiff signed the exhibitors contract on September 30, 2006.
Canwest accepted it on October 2, 2006. Above the plaintiffs signature are these
words:
Applications Will Not Be Processed Unless All Monies Are Received.
All monies paid after acceptance of application are non-refundable. Authorized
signature here indicates acceptance of Terms & Conditions on both sides of
this document as set forth by Canwest Shows.
[Emphasis
added.]
[22]
The reverse side of the contract contains a number of clauses, including
the Waiver Clauses (i.e. a release of liability clause and an indemnification
clause). The release of liability clause states:
14. Neither the Management, the Center nor any of their
officers, agents, employees or other representatives, shall be held accountable
or liable for, and the same are hereby released from accountability or
liability for any damage, loss, harm or injury to the person or any property of
the applicant or any of its officers, agents, employees, or other
representatives, resulting from theft, fire, water, accident or any other
cause, and neither the Management nor the Center will obtain insurance against any
such damage, loss, harm or injury.
[23]
The indemnification clause states:
15. The applicant hereby agrees
to indemnify, defend and protect the Management and the Center against, and
hold and save the Management and the Center harmless from any and all claims,
demands, suits, liability, damages, loss, costs, attorney fees and expense of
whatever kind or nature which might result from or arise out of any action or
failure to act of the applicant or any of its officers, agents, employees, or
other representatives, including but not limited to claims or damage or loss to
property, or from or out of any damage, loss, harm or injury to the person or
any property of the applicant or any of its officers, agents, employees or
other representatives.
[24]
There is no question the applicant referred to in the contract is the
plaintiff and that Mr. Rosengreen was an agent for Canwest.
[25]
I note here that Mr. Rosengreen, who managed the signing of contracts
for Canwest, says he has no specific recollection of discussing the Show or the
contract with the plaintiff at any time before the Show.
[26]
As I understand it, applicants wanting to rent exhibition booths at the
Show often provide services, including stage performances, in exchange for Canwests
waiving of booth rental fees.
[27]
Canwest says the plaintiffs agreement to perform at the Show constituted
the consideration he provided Canwest in exchange for exhibition booths to
promote the services of his exotic entertainment company.
[28]
The exhibitors contract is in a standard form, which Canwest uses for
all exhibitions. It is double sided. The signature page is on the front. Various
conditions, including the Waiver Clauses, are stated on the reverse side. Mr.
Rosengreen, who was responsible for administering exhibitors contracts for the
Show, deposes that when he sends a copy of the contract to the exhibitor for
their signature, the first and second pages are sent individually. I understand
this relates to the difficulties of emailing or faxing duplex pages. Anyway, he
says, all exhibitors are given the complete document and are required to sign
it.
B.
Plaintiffs position regarding the Waiver Clauses in the exhibitors
contract
[29]
The plaintiff acknowledges he signed a contract but says that it was a
one page contract with Canwest in order to apply to be an exhibitor. At para.
6 of his first affidavit, sworn October 26, 2011, he says:
The contract I signed is a one
page, one-sided document entitled 2007 Vancouver Exhibitor Contract &
Application (the Exhibitors Contract). I understood the Exhibitors Contract to
be my application to be an exhibitor but I was unaware of any additional Terms and
Conditions apart from the one page one-sided document. I also did not notice
the small print where I signed.
[30]
The plaintiff also deposes he does not recall how he obtained the
exhibitors contract. In this regard, he points as well to the examination for
discovery of Terra Connors, who was a general manager for Canwest at the time
of the incident. She said she does not know whether Canwest sent the contract
by facsimile or by e-mail in scanned PDF format. Whether the contract is faxed
or emailed, the reverse side of page one is sent to the exhibitor as a second
page.
[31]
The first page of the contract, which appears to be a faxed copy, is
imprinted with facsimile stamps on the front page. The stamp at the top bears
the date of September 30, 2006, and the name and telephone number of the store
the plaintiff works at. September 30, 2006 is also the date the plaintiff
signed the exhibitors contract.
[32]
The plaintiff says he did not know of the Waiver Clauses before he
signed the exhibitors contract and that had he known of the Waiver Clauses, he
would not have signed it. He deposes he always understood the exhibitors
contract was separate from the contra agreement. He says that this is why he
signed the contract and returned it to Canwest via facsimile on September 30,
2006, along with a written note:
This is a reminder that we will
supply you with Exotic Entertainment in exchange for Booth Space. I look
forward to another great show!
…
[33]
The plaintiff also says that, after returning what was presumably only
the front page of the contract along with his handwritten note, Canwest did not
ask him to send any further documentation. Accordingly, he asserts, Canwest had
accepted the front page of the exhibitors contract he returned without the Waiver
Clauses on the reverse side, which Canwest is now attempting relying on in the
case at bar.
[34]
I should note now that Terra Connors states at para. 4 of her second
affidavit, sworn November 3, 2011, that the standard form exhibitors contract
does not have a specific section where exhibitors state they are performing in
exchange for booth space. She states that [t]ypically, exhibitors who were
performing in return for booth spaces would either write a note of that fact
directly on their signed contract when it was sent back to Canwest or provide a
separate letter confirming this arrangement or both.
[35]
In response to this statement, the plaintiff asserts in para. 2 of his
second affidavit, sworn November 8, 2011, that while he agrees the exhibitors
contract did not specifically have a section where exhibitors state they will
be performing, [t]hat is because the performance of services that I provided
Canwest was the subject of a collateral contract. The plaintiff asserts the alleged
collateral contract, which he calls the Performance Contract in his affidavit,
had these terms:
a) I would provide performance services to the
Defendants;
b) I
would provide those services at a place other than the site specified in the
Exhibitors Agreement and at a place specified by the Defendants;
c) I
would provide those services at the times specified by the Defendants;
d) The
Defendants would provide a safe and secure venue from which these services
would be performed;
e) In consideration for the
contract for the Performance Contract, the Defendants would waive the fee I
would otherwise pay for the Exhibitors Agreement, in form attached as Schedule
A to the Affidavit of Terra Connors dated November 3, 2011.
[36]
Ms. Connors explains in her second affidavit that Canwest does not view
the contra agreement as a separate or distinct agreement as the plaintiff
alleges. She states that the plaintiffs agreement to perform at the Show was
the consideration that he provided to Canwest in return for being permitted to
use booth space at the Show to exhibit his services free of charge. This
agreement was a core part of the Contract and subject to its terms and
conditions.
C.
Is the Performance Contract an enforceable collateral contract?
[37]
The question at hand is whether there exists, as the plaintiff alleges,
an enforceable collateral contract in the case at bar which, by virtue of its
terms, stipulates that the Waiver Clauses in the exhibitors contract do not
apply to the plaintiff in his capacity as a performer. I did not hear
extensive submissions in this area, but the plaintiff referred to Garner, Bryan
A., Blacks Law Dictionary, 8th ed. (St. Paul: Thomson
Reuters, 2004), wherein a collateral contract is defined as:
A side agreement that relates to
a contract, which, if unintegrated, can be supplemented by evidence of the side
agreement; an agreement made before or at the same time as, but separately
from, another contract. …
[38]
The definition of collateral contract in Blacks Law Dictionary
continues on to cite the following from P.S. Atiyah, An Introduction to the
Law of Contract 80-81, 161 (3d ed. 1981):
[A]lthough the normal
presumption is that the parties intend a written contract to be exclusive
evidence of their intentions, it is always open to a party to show that in fact
the writing did not exclusively represent their intentions, because of a
collateral contract made during the negotiations but not incorporated in the
written instrument.
[39]
In Hawrish v. Bank of Montreal, [1969] S.C.R. 515 [Hawrish],
the Supreme Court of Canada adopted the following statement regarding the enforceability
of a collateral contract, at 521:
A distinct collateral agreement,
whether oral or in writing, and whether prior to or contemporaneous with the
main agreement, is valid and enforceable even though the main agreement be in
writing, provided the two may consistently stand together so that the
provisions of the main agreement remain in full force and effect
notwithstanding the collateral agreement.
[40]
In River Wind Ventures Ltd. v. British Columbia, 2011 BCCA 79 [River
Wind Ventures Ltd.], the Court cited Hawrish and set out at para. 14
the three elements required for a collateral contract to be enforceable:
a) the terms of the contract are clearly shown;
b) there is a clear intention to contract; and
c) the collateral contract is not
inconsistent with or does not contradict the main contact.
[41]
The plaintiff submits his agreement with Canwest, which he calls the
Performance Contract, falls squarely within the definition of a collateral
contract. He submits the Performance Contract stands fully outside the four
corners of the exhibitors contract. I note, however, that since the Performance
Contract constitutes the consideration for the exhibitors contract, it cannot
logically be said that the two are distinct.
[42]
The plaintiff says, however, that because the exhibitors contract
refers only to exhibiting and not to performance and because, as he asserts, he
executed the exhibitors contract in his capacity as an authorized exhibitor
and not as a performer, only the collateral contract applies to him
in his capacity as a performer. He says additionally that if the Waiver Clauses
in the exhibitors contract apply to him at all, it is only in his capacity as
an exhibitor and not in his capacity as a performer.
[43]
In light of the test for an enforceable collateral contract set out in Hawrish
and River Wind Ventures Ltd., I find the plaintiff has not established
that the collateral agreement he advances in his affidavit is enforceable. There
is no written evidence of the alleged collateral contract to show clear terms.
There is no evidence of Canwests intention to enter into the terms of the
alleged collateral contract; and it is arguable that the alleged term that Canwest
would provide a safe and secure venue for the performance is inconsistent with
the Waiver Clauses in the exhibitors contract. In the face of this, the
plaintiff has not met the test to establish the existence of the collateral
contract he has alleged.
[44]
Even if I had accepted the plaintiffs argument that a collateral
contract between the parties existed, this, in my view, would not justify the
conclusion that the terms agreed to in the principal exhibitors contract are
therefore excluded from the collateral contract. The parties understood that in
consideration of the plaintiffs performance he would not have to pay the costs
of renting two exhibition booths. Exhibit B of the plaintiffs affidavit,
dated October 26, 2011, which is a note reminding Canwest that the plaintiff and
his female partner would be supplying exotic entertainment in exchange for booth
space, clearly defines the consideration.
[45]
Although I have found that the terms of the Performance Contract did
not amount to an enforceable collateral contract to the exhibitors contract, I
must still consider what terms, if any, are implied in the exhibitors contract
by virtue of the contra agreement the parties entered into.
D.
What terms, if any, are implied in the exhibitors contract by virtue of
the plaintiffs provision of performance services as consideration for booth
space at the Show?
[46]
The ability of courts to imply a particular term into a contract the
parties have not explicitly included is discussed in London Drugs Ltd. v.
Kuehne & Nagel International Ltd. et al. (1990), 45 B.C.L.R. (2d) 1, 70
D.L.R. (4th) 51 (C.A.). There, Lambert J.A. adopted the following
statement by Lord Simon of Glaisdale, for the Privy Council, in B.P.
Refinery (Westernport) Pty. Ltd. v. Shire of Hastings (1977), 16 A.L.R. 363
at 376:
… for a term to be implied,
the following conditions (which may overlap) must be satisfied: (1) it must be
reasonable and equitable; (2) it must be necessary to give business efficacy to
the contract so that no term will be implied if the contract is effective
without it; (3) it must be so obvious that "it goes without saying";
(4) it must be capable of clear expression; (5) it must not contradict any
express term of the contract.
[47]
The above passage was also cited with approval in Samis Restaurant
v. W. Hanley & Company Ltd., 2002 BCCA 218, at para. 4.
[48]
Another helpful explanation of the rule is set out in Olympic
Industries Inc. v. McNeill (1993), 86 B.C.L.R. (2d) 273 (C.A.), wherein
Finch J.A. (as he then was) adopted at para. 24 the following statement by
Scrutton L.J. in Reigate v. Union Manufacturing Co. (Ramsbottom) Ltd.,
[1918] 1 K.B. 592 (C.A.) at 605:
…. The first thing is to see
what the parties have expressed in the contract; and then an implied term is
not to be added because the Court thinks it would have been reasonable to have
inserted it in the contract. A term can only be implied if it is necessary in
the business sense to give efficacy to the contract; that is, if it is such a
term that it can confidently be said that if at the time the contract was being
negotiated some one had said to the parties, "What will happen in such a
case," they would both have replied, "Of course, so and so will
happen; we did not trouble to say that; it is too clear." Unless the Court
comes to some such conclusion as that, it ought not to imply a term which the
parties themselves have not expressed.
[49]
Applying the above legal principles to the case at bar, there is no
question the parties agreed that in lieu of paying a fee for booth space at the
Show, the plaintiff would provide services to Canwest. The plaintiff says the arrangement
also stipulated that he would provide those services at a place other than the
site specified in the exhibitors contract and at a place specified by Canwest.
I take it that in saying at a place other than the site specified in in the
exhibitors contract, the plaintiff is referring to a place other than the two
booth choices (i.e. 902 and 904) designated in the exhibitors contract. There
is of course no question the plaintiff would not give his performance in one of
the 10 x 10 exhibition booths but at a stage set up by Canwest for such
purposes. Canwest and the organizers of the Show were obviously expected to
specify the times the plaintiff would be required to perform (see Exhibit C
to the affidavit of Terra Connors dated August 25, 2011, which specifies in
detail the main stage schedule for each day of the Show as well as a seminar schedule).
According to the schedule, the plaintiff was expected to perform Thursday at 8
p.m., Friday at 10:20 p.m. and Saturday at 10:40 p.m., the final performance
being the one in which the plaintiff alleges he slipped and sustained an
injury.
[50]
As for the implied term of a safe and secure environment, given the Occupiers
Liability Act, R.S.B.C. 1996, c. 337 [Occupiers Liability Act],
which imposes such an obligation on the defendant in any event as an occupier
of the premises in which the plaintiff performed, it is not necessary to imply
this term to make the agreement effective.
[51]
I find, therefore, that by virtue of the plaintiff providing performance
services as consideration for the waiver of rental fees for booth space at the
Show, the following terms are impliedly contained within the exhibitors
contract: (a) the plaintiff would provide performance services at a place
specified by the defendant; and (b) the plaintiff would provide performance
services at a time specified by the defendant.
[52]
I do not find the term that the defendant would provide a safe and secure
environment for the plaintiff to deliver his performance services is implied in
the contract though I note, as already mentioned, that because the Occupiers
Liability Act renders Canwest an occupier, such an obligation is imposed
on the defendant in any event.
[53]
In summary to this point, I have found (1) there was no collateral contract
between the parties; (2) the exhibitors contract contained implied terms that
the defendant would specify where and when the plaintiff would perform; and (3)
the exhibitors contract did not contain an implied term that the defendant
would provide a safe and secure environment for the plaintiff to deliver his
performance services, though this obligation is imposed on the defendant by the
Occupiers Liability Act.
E.
Defendants position on the enforceability of the Waiver Clauses
[54]
As mentioned earlier, Canwest takes the position that the contra
agreement was an integral part of the exhibitors contract and that the
plaintiff is subject to its terms and conditions, including the Waiver Clauses,
as an exhibitor and as a performer.
1.
Plaintiffs examination for discovery evidence
[55]
The defendant relies on evidence the plaintiff gave on examination for
discovery. When asked if he would have read the two page document in its entirety
when he signed it, he said that he probably did not read the whole thing, but
Im aware of everything thats in there. I am now (Plaintiffs examination for
discovery, line 413).
[56]
The plaintiff also acknowledged during his examination for discovery
that it was possible that someone explained the document to him and he just
does not remember that occurrence (Plaintiffs examination for discovery, line
416).
[57]
He also acknowledged, following his experience from a previous knee
injury, that he was familiar with clauses similar to the Waiver Clauses. When
the Waiver Clauses were put to him at his examination for discovery, he had no
difficulty understanding them (Plaintiffs examination for discovery, lines
422-424).
[58]
The plaintiff agreed that by signing the contract, he had, in essence, agreed
to trade his services in exchange for free booth space at the Show (Plaintiffs
examination for discovery, line 371).
[59]
I now turn to the broader question of whether the circumstances in the
case at bar are such that a reasonable person should have known that the
plaintiff was not consenting to the Waiver Clauses; and, if so, whether Canwest
took reasonable steps to apprise the plaintiff he was binding himself to them
or had ensured he had read and understood them.
2.
Discussion of defendants position
[60]
Although the plaintiff argues the defendant never brought the Waiver
Clauses to his attention, or explained them to him at any time before his
signing of page one, he acknowledged, on examination for discovery, that he had
no recollection of the circumstances when he signed the exhibitors contract
(Plaintiffs examination for discovery, lines 411-412). He also acknowledged,
this being so, it was possible someone had explained the agreement to him
(Plaintiffs examination for discovery, line 416).
[61]
But whether or not the plaintiff signed the exhibitors contract before he
had actually read the Waiver Clauses, it is clear that, had he done so, he
would have had no difficulty understanding their general legal intent. This conclusion
is apparent from his examination for discovery testimony read into evidence by Canwest.
[62]
Further, the plaintiff testified on discovery that, while performing an
exotic dance in a nightclub at some point in time before the incident at issue
in the case at bar, he shattered his knee and injured it pretty
substantially (Plaintiffs examination for discovery, lines 350 and 356). The
facts of this incident are spare. Apparently, a patron had spilled a drink on
the floor; the plaintiff slipped on the spill and injured himself. Of significance
to the case at bar is that the plaintiff had read clauses very similar to the
Waiver Clauses in the past, which I understood to mean waiver of liability and
indemnification clauses in the ensuing claim he brought against the nightclub
(Plaintiffs examination for discovery, line 417).
3.
Findings on formation of the exhibitors contract
[63]
Considering the evidence as a whole, I find the most reasonable inferences
derivable from the circumstantial evidence surrounding the defendants sending
of the exhibitors contract to the plaintiff, and his signing of and returning
it, including the date stamps on the faxed document, are the following:
a) on
or around September 30, 2006, Canwest sent both page one and the reverse side of
it, page two, which was sent on a separate page, to the plaintiff, by fax;
b) the
plaintiff likely received both the first and second pages of the agreement by
fax on or around September 30, 2006, per Canwests standard practice;
c) September
30, 2006, the plaintiff signed the first page and faxed that page back to the defendant;
d) the
plaintiff did not, however, return the second page by fax to the defendant;
e) the
plaintiff had previous experience and was familiar with the legal intent of the
kind of terms found in the Waiver Clauses in the exhibitors contract;
f) although
it is established on the evidence that the plaintiff sent the signed first page
of the contract and a handwritten note to Canwest, there is no evidence
suggesting he lacked sufficient opportunity to read it;
g) had
he read the reverse side of the contract, particularly the Waiver Clauses, I am
satisfied he would have understood sufficiently that, by signing the contract,
he was agreeing he could not sue the defendant or any of its agents or
employees, which would encompass all the defendants named in the case at bar. The
words were clear enough, especially given the plaintiffs previous litigation
experience, to defeat the plaintiffs claim. See Clarke v. Action Driving
School Ltd. [1996] B.C.J. No. 953 (S.C.), at para. 7-10; and
h) more
likely than not, Canwest did not bring the Waiver Clauses to the attention of
or explain them to the plaintiff before he signed them.
[64]
I do not accept the plaintiffs suggestion that his signing and
returning just the first page of the exhibitors contract establishes that he
did not read the reverse side and is therefore not bound to the terms found
there. I find the plaintiff was aware of the presence of clauses on the reverse
side and that these clauses, with the first page, constituted the entirety of
the exhibitors contract. I also find that he signed the agreement with an
awareness of the words clearly written above; and by his signature, confirmed acceptance
of terms and conditions on both sides of the document. I find the other side of
the document was sent as a separate page to him. While the details of his
performance and the specific value of the consideration received through the
free provision of booth space is not set out in the exhibitors contract, the
evidence is clear that both parties understood what the words contra referred
to. It was not necessary for the plaintiff, when he returned the first page of
the contract to the defendant accompanied by his handwritten note, to also return
a copy of the terms and conditions found on the reverse of page one.
[65]
In support of this finding, I note that only two of the clauses on the
reverse side of page one, the Waiver Clauses, are release of liability or
indemnification clauses; the rest deal with exhibitor obligations and
limitations. By his signature on page one, the plaintiff has acknowledged
acceptance of them. And, although the plaintiff has effectively conceded that, by
signing the first page, he entered into an exhibitors contract, he fails to
explain what effect the Court should then give to various conditions on the
reverse page, such as clause 9, which, should the plaintiff fail to pay what he
owes Canwest, permits it to cancel his right to exhibit.
[66]
I cannot see why I should afford any significance to the plaintiffs
failure to return page two to the defendant, nor can I see how it would assist
his standing under the Occupiers Liability Act. If he did not intend to
accept the defendants offer as presented, including the terms and conditions
on the reverse side, he effectively presented a counter-offer to which the
parties had not come to one mind. The plaintiffs handwritten note sent with
the signed front page of the exhibitors contract merely confirms the contra
term of the contract, i.e. that the plaintiff would perform in lieu of paying
the fee for renting exhibition booths. The implications of this were not
argued, and I do not intend now to consider what those implications might be,
beyond pointing out logical flaws in some aspects of the plaintiffs position.
F.
Can the defendant rely on the Waiver Clauses despite its failure to
bring them to the plaintiffs attention?
[67]
Although I have rejected the plaintiffs submission that he and Canwest
formed a collateral contract that effectively extinguished any legal effect of
the Waiver Clauses, they must still undergo an analysis to determine
whether the surrounding circumstances are such that a reasonable person should
have known the plaintiff was not consenting to the terms in question. If so,
Canwest would then owe the plaintiff an obligation to explain to him that the Waiver
Clauses encompassed his activities at the Show as a performer: Karroll v.
Silver Star Mountain Resorts Ltd. (1988), 33 B.C.L.R. (2d) 160 (S.C.) [Karroll].
[68]
In other words, the question is this: given the circumstances, did the
defendant owe the plaintiff an obligation to explain to him that the Waiver
Clauses applied to the plaintiff in his role as a performer no less than as an
exhibitor?
[69]
After reviewing the authorities, McLachlin C.J.S.C. (as she then was)
held the following in Karroll at 166:
… there is no general
requirement that a party tendering a document for signature take reasonable steps
to apprise the party signing of onerous terms or to ensure that he reads and
understands them. It is only where the circumstances are such that a reasonable
person should have known that the party signing was not consenting to the terms
in question that such an obligation arises. For to stay silent in the face of
such knowledge is, in effect, to misrepresent by omission.
[70]
The Court in Karroll goes on at 166 to explain some of the
factors the court should consider when deciding whether an occupier needs to
take reasonable steps to advise the signing party that the contract contains release
of liability and indemnification clauses:
Many factors may be relevant to
whether the duty to take reasonable steps to advise of an exclusion clause or
waiver arises. The effect of the exclusion clause in relation to the nature of
the contract is important because if it runs contrary to the party’s normal
expectations it is fair to assume that he does not intend to be bound by the
term. The length and format of the contract and the time available for reading
and understanding it also bear on whether a reasonable person should know that
the other party did not in fact intend to sign what he was signing. This list
is not exhaustive. Other considerations may be important, depending on the
facts of the particular case.
[71]
In Karroll, the plaintiff was participating in a ski race hosted
by the defendants. After colliding with another skier, she alleged the
defendants had failed to ensure other skiers were clear of the racecourse before
her race.
[72]
The plaintiff knew she had to sign a release before she could
participate; she had been racing for the fifth time when injured. She could not
recall reading the document or whether she had been given an opportunity to
read it. But she had thought it prevented her only from suing the defendants if
she were to fall on her own; and she argued that because the defendants did not
give her adequate notice of its contents or sufficient opportunity to read or
understand it, the agreement did not bind her. McLachlin C.J.S.C. (as she then
was) considered the following:
a) The
purpose of the release of liability was consistent with the general terms of
the contract, which was to permit the plaintiff to engage in a hazardous
activity;
b) The
release was brief and easy to read and did not have fine print; and
c) The
plaintiff had experience signing similar forms in the past and it was not an
unusual requirement.
[73]
These considerations led the Court to conclude that because the
defendants had no reason to believe the plaintiff was not agreeing to the terms
in question, they owed the plaintiff no obligation to bring the contents of the
release of liability clause to her attention or to ensure she had fully read it.
[74]
I now turn to see whether the circumstances in the case at bar obliged
Canwest to take reasonable steps to advise the plaintiff of the Waiver Clauses in
the exhibitors contract. I bear in mind that the court should consider all of
the circumstances in a particular case, not only those mentioned in Karroll.
1.
How clearly did the contract draw attention to the Waiver Clauses?
[75]
Immediately above the signature line on page one of the exhibitors
contract, it states [a]uthorized signature here indicates acceptance of Terms
& Conditions on both sides of this document as set forth by Canwest Shows.
I find the words above the signature line on page one are legible; they are not
in fine print. They are italicized, which draws attention to them. They clearly
state the signing party is accepting terms and conditions on the reverse side.
But these words do not draw the signing partys attention to the presence of
the Waiver Clauses on the reverse side. I will discuss the significance of this
failure further on in these reasons.
2.
How easy to read were the Waiver Clauses?
[76]
I find the wording of the Waiver Clauses is relatively straightforward; and,
while I would not agree with the defendant that the most casual glance would
indicate to the reader that the Waiver Clauses contained words intended to
limit liability, I find a reasonable person reading them could readily see the
words did limit liability.
3.
How familiar was the plaintiff with the Waiver Clauses?
[77]
As discussed earlier, the plaintiff had previously dealt with clauses
similar to the Waiver Clauses and was familiar with their intent.
4.
How consistent are the Waiver Clauses with the general terms of the
exhibitors contract?
[78]
The contract between the parties focuses on exhibition activities and
the parties respective exhibition obligations. The contracts focus on
exhibition activities weakens Canwests position that the Waiver Clauses also extend
to the plaintiffs activities as a performer. Naturally, Canwest argues the contra
agreement is part and parcel of the exhibitors contract, forming as it does
the consideration for the defendants acceptance of the plaintiffs application
for two booths. That is true, but the form of the consideration, an exotic
dance performance by the plaintiff on a stage provided by the defendant, is an
activity that is distinct from the activities an exhibitor engages in.
[79]
The terms and conditions on the reverse side of the contract, apart from
the Waiver Clauses, focus primarily on exhibitor activities, and they deal with
inherently different risks. In comparison, the release of liability clause in Karroll
directly connected to the activity that formed the core purpose of the
general contract, which was to permit the plaintiff in that case to participate
in a race. Stated another way, there was a direct link between the activity,
racing in an organized downhill ski race, and the participants releasing of the
organizers from liability for injury suffered while participating in the race.
The clear connection between the purpose of the release of liability clause and
the activity could not be lost on a reasonable person reviewing the contract.
[80]
In the case at bar, however, the general nature of the contract deals
with activities and obligations relating to exhibiting in booths. Although the
parties agreed the plaintiffs performance could stand in as consideration in
lieu of fees for booth space, given the disparity between the general nature of
the contract and the activity of exotic dancing, I find there is not a
sufficiently direct link between the type of activity during which an injury
was allegedly suffered and the purpose of the Waiver Clauses, such that a
reasonable person would not have known that the plaintiffs signature indicated
his consent to the Waiver Clauses in his capacity as a performer. Stated
differently, the plaintiff signed the exhibitors contract as an exhibitor and
as a performer, the latter role not being one that the standard form contract
was designed to capture. Thus, it was incumbent upon the defendant to convey to
the plaintiff that the Waiver Clauses applied to his activities both as an
exhibitor and as a performer.
[81]
Therefore, I find the defendant was obliged to point out that the Waiver
Clauses applied to exhibitors paying a fee for their booth space and to
exhibitors, such as the plaintiff, performing in lieu of paying booth rental
fees. The defendant failed to make this sufficiently clear to the plaintiff.
And I find the distinct differences between the activities of displaying
products in a booth and dancing on a stage are such that Canwest ought to have
notified the plaintiff that the Waiver Clauses applied to his participation in both
of these activities.
[82]
I thus find the Waiver Clauses do not provide an effective defence in
this case because the circumstances required Canwest to bring them to the
plaintiffs attention, which it did not do.
[83]
I note as well that section 4(1) of the Occupiers Liability Act
imposes a duty on an occupier to give reasonable notice to a person who will be
using the premises if the occupier wishes to limit its liability:
4 (1) … if an
occupier is permitted by law to extend, restrict, modify or exclude the
occupier’s duty of care to any person by express agreement, or by express
stipulation or notice, the occupier must take reasonable steps to bring that
extension, restriction, modification or exclusion to the attention of that
person.
[84]
In my view, the Occupiers Liability Act obligated Canwest to take
reasonable steps to bring the Waiver Clauses to the plaintiffs attention in
his capacity as a performer as well as an exhibitor in order to preserve the
enforceability of the Waiver Clauses against him. Canwest did not do so and
thus cannot now rely on them to defeat the plaintiffs claims.
[85]
I turn now to the plaintiffs claim against the defendant in negligence,
which raises questions regarding the defendants duty of care, and whether the
defendants actions or inactions, if any, caused the plaintiffs right knee injury.
IV.
Analysis: The Negligence Claim
[86]
As set out in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27,
at para. 3, a successful action in negligence requires the plaintiff to demonstrate
that:
a) the defendant owed him a duty of
care;
b) the defendants behaviour
breached the standard of care;
c) the plaintiff sustained damage;
and
d) the damage was caused, in fact
and in law, by the defendants breach.
[87]
Of the above, only the questions of whether the defendant breached the
standard of care and, if so, whether it caused the damage suffered by the
plaintiff, is in issue.
A.
Standard of care
[88]
The plaintiff is advancing a claim against Canwest in negligence and in
its capacity as an occupier under the Occupiers Liability Act. The applicable
standard of care for both causes of action is described in Ryan v. Victoria
(City), [1999] 1 S.C.R. 201, at para. 28, in which the Court held the
following:
28 Conduct is negligent
if it creates an objectively unreasonable risk of harm. To avoid liability, a
person must exercise the standard of care that would be expected of an
ordinary, reasonable and prudent person in the same circumstances. The measure
of what is reasonable depends on the facts of each case, including the
likelihood of a known or foreseeable harm, the gravity of that harm, and the
burden or cost which would be incurred to prevent the injury. In addition, one
may look to external indicators of reasonable conduct, such as custom, industry
practice, and statutory or regulatory standards.
[89]
The standard of care under the Occupiers Liability Act, a topic
which I will turn to next, is the same as that imposed by the general law of
negligence: see Chamberlain v. Jodoin, 2011 BCSC 739, at para. 35; and Rendall
v. Ewertt (1989), 38 B.C.L.R. (2d) 1 (C.A.).
1.
Occupiers Liability
[90]
Section 3 of the Occupiers Liability Act outlines the nature of
an occupiers duty of care in relation to persons who use the premises in
question:
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
premises, 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.
(3) Despite subsection (1), an occupier has no duty of
care to a person in respect of risks willingly assumed by that person other
than a duty not to
(a) create
a danger with intent to do harm to the person or damage to the person’s
property, or
(b) act with reckless disregard to
the safety of the person or the integrity of the person’s property.
…
[91]
As stated by Madam Justice Ross in Ball v. GAP (Canada) Inc.,
2001 BCSC 1106, at para. 25, [t]he standard expected of an occupier is one of reasonableness,
not perfection.
[92]
In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.),
McLachlin J. (as she then was) held at 58 that:
… the duty owed by an occupier
of premises is to take reasonable care to see that persons using the premises
will be reasonably safe. The Acts do not impose a duty to take reasonable care
to insure that persons using the premises will be absolutely safe. …
[93]
The general legal principles governing an occupiers liability were
neatly summarized by Preston J. in Mainardi v. Shannon, 2005 BCSC 644,
at para. 21:
[21] In applying the duty imposed by the Act
to the facts of an individual case there are a number of propositions of law
that are well established by the jurisprudence.
(1) The
plaintiff bears the onus of proving on a balance of probabilities that the
occupier breached his or her duty of care.
(2) A
presumption of negligence is not created by the fact that the plaintiff was
injured. The plaintiff must establish that some act or failure to act on the
part of the occupier resulted in his or her injury: (Bauman v. Stein
(1991), 78 D.L.R. (4th) 118 (B.C.C.A.)).
(3) The
duty of care imposed by the Act does not require the occupier to
remove every possibility of danger — the test is one of reasonableness, not
perfection: (Gerak v. British Columbia (1984), 59 B.C.L.R. 273
(C.A.) (leave to appeal to S.C.C. refused; Carlson v. Canada Safeway
Ltd. (1983), 47 B.C.L.R. 252 (C.A.)).
(4) The
Court is not entitled to resort to speculation when determining the cause of
the plaintiff’s fall and subsequent injury. The plaintiff must prove the
nexus between his or her fall and the occupier’s failure to discharge his or
her duty of care: (Cropley v. Daishinpan (Canada) Ltd., 2002 BCSC
1477 ¶ 22).
(5) The
care that an occupier must take differs according to the nature and use of the
premises: (Kayser v. Park Royal Shopping Centre Ltd. (1995), 16
B.C.L.R. (3d) 330 (C.A.)).
(6) The occupier need not, in all
cases, show that he or she had a specific policy in place to deal with the
maintenance of the portion of the premises where the fall occurred. The nature
of the premises will determine whether or not a maintenance scheme will be
required: (Leduc v. Goodwill Investments Ltd., [1997] B.C.J. No.
1709 (S.C.) ¶ 20).
[94]
Finally, an occupier is required to take reasonable steps to remedy any
unsafe condition that would be seen by a person applying his or her mind to the
relevant risks associated with the use of the premises: Tran v. Kim Le
Holdings Ltd., 2011 BCSC 1690 [Tran], at para. 77.
2.
The plaintiffs evidentiary onus on the standard of care
[95]
Canwest was an occupier under the Occupiers Liability Act. As
such, and given the ineffectiveness of the Waiver Clauses, it owed the
plaintiff a duty of care to ensure that, in all the circumstances, it was
reasonably safe to use the premises for the purpose of his performance.
[96]
The simple fact of a plaintiffs slipping or falling does not shift the
evidentiary onus onto Canwest. The plaintiff must still show that something the
occupier did or neglected to do caused his slip or fall: Lansdowne v. United
Church of Canada et al., 2000 BCSC 1604 [Landsdowne], at paras. 13,
22. And, as explained by Cohen J. in Van Slee v. Canada Safeway Limited,
2008 BCSC 107 [Van Slee], at para. 31, the Court must not speculate on
what caused the fall, or in the case at bar, the slip. Adopting the analysis of
Cohen J. in Van Slee, the plaintiff must therefore prove the
following in the case at bar under the standard of care stage of the negligence
analysis:
1) what hazard
or condition caused the slip; and
2) that
the defendants breach of its duty of care caused the hazard or condition to be
present.
[97]
Referring to Landsdowne, Cohen. J. noted in Van Slee that
the Court should not resort to speculation to fill evidentiary gaps.
[98]
For claritys sake, I pause briefly to note that the analysis in Van
Slee effectively calls for two sets of causation inquiries in a slip and
fall case: one under the standard of care analysis and the other under the
causation analysis as it is traditionally labelled in the law of negligence.
The first analysis requires the plaintiff to establish what hazard caused
the slip and that the defendants negligence caused the hazard to be
present. The second analysis, to which I will turn after the standard of
care section in these reasons, requires the plaintiff to establish that the
defendants negligence caused the injury he suffered because
of the slip.
3.
Has the plaintiff established what condition or hazard caused the slip?
[99]
In Van Slee, the plaintiff slipped and fell while in a grocery
store. The weather outside at the time of the incident was rainy, but the
plaintiff did not know with any certainty what caused her to slip and fall. The
plaintiff assumed that she slipped on some water that had accumulated on the
floor of the grocery store.
[100] In Landsdowne,
the plaintiff slipped and fell while descending a staircase at the defendants
premises. At trial, she alleged her sandal became caught in some loose threads
of the carpeting on one of the steps, which caused her to fall. The plaintiff cited
evidence that the carpeting had loose threads. Even so, the plaintiff testified
on her examination for discovery that she had no idea why she fell or upon
which step she had fallen. When counsel put to her that she did not actually
know if a thread caught her sandal, her response was: What else could it have
been?
[101] In both Van
Slee and Landsdowne, the Court dismissed the plaintiffs action
because the Court, in order to accept the theories of the plaintiffs, would
have to resort to speculation: Landsdowne, at para. 23.
[102] As noted,
the plaintiff asserts the defendant neglected to detect the presence of an oily
substance left on the stage by previous exhibitors using the stage. Canwest
responds that the plaintiff failed to prove a hazardous substance was present
on the stage, or that any substance on it caused him to slip; and, Canwest
submits that if any substance were present, more likely than not, it was some
of the baby oil he had spread on his body before his performance.
[103] In
response, the plaintiff submits he, unlike the plaintiffs in Landsdowne and
Van Slee, is able to point to a specific cause of his slip. The
plaintiff further submits that, unlike the plaintiff in Van Slee, he saw
the substance that caused him to slip prior to actually slipping. Therefore, he
submits, the Court does not have to resort to speculation to fill evidentiary
gaps. In this regard, he points to activities on the stage in the hours leading
up to his 10:40 p.m. performance, particularly a body painting demonstration
that occurred at 6:30 p.m.
[104] Counsel
for the plaintiff therefore urges me to distinguish the case at bar from Van
Slee. He says the plaintiffs evidence he was sure he slipped on a
slippery substance on the stage is not, on his part, a speculative theory.
a)
Nature of the performance
[105] The
performance was 20 to 25 minutes long, during which the plaintiff spent 50 percent
of the time on the floor and bar tables and the rest of the time on the back of
the stage and runway area. Therefore, given the fact that the plaintiffs
injury occurred halfway through his dance routine, he agreed that he would have
been on and off the stage at least a couple of times prior to the point in time
when he said he slipped. That evening, he thought he had gotten on and off the
stage at least four times (Plaintiffs examination for discovery, line 199).
[106] The
plaintiff stated that when he slipped, aside from his boxer shorts and black
dancing boots, he had removed most of his costume (Plaintiffs examination for
discovery, lines 214-216). He explained that to get the attention of the crowd while
he is on the main stage during his performance, he does something similar to a
dive roll or front handspring. He then works his way off the stage so he can
get closer to the audience. During his performance, the plaintiff jumps off and
on the stage at least three to five times. When he is not on the stage he goes
into the crowd. As he explained, he even jumps up on a number of the tables (Plaintiffs
examination for discovery, line 146).
b)
Location of the alleged substance and slip
[107]
The plaintiff states that halfway through his performance, near the
ending of one of the songs, he jumped onto the square main stage area, which
is situated at the back of the runway portion of the stage, and started walking
forward towards the runway portion of the stage. He says his foot slipped on
something at the beginning of the runway, near to where it joins the main stage
area. He slid forward and almost fell, but did not actually fall to the stage
or to the ground. He says:
I kind of caught myself and
stood there and my knee — as Im — my right knee, as Im stepping forward
isnt just — its just kind of locked-up and all of a sudden I just feel ah
as I step down to the ground, and I continue doing my show to the end of the
song.
[108]
He agreed that he would have moved across that area earlier in the
performance, but only at the very beginning (Plaintiffs examination for
discovery, line 242).
[109]
The plaintiff acknowledged that it was possible that he moved back and
forth across the location of the alleged substance possibly two or three times
before the incident occurred, saying anythings possible (Plaintiffs
examination for discovery, lines 248-250).
[110]
He also described a skid mark that was left on the stage surface after
the incident which was greasy, 18-24 inches in length, and roughly the width
of his boot or foot.
[111] Canwest
points out that the plaintiff did not report any incident or difficulty the
first time that he walked in and around the same area he slipped on later.
[112]
Counsel for the defendant introduced the plaintiffs examination for
discovery evidence at trial, portions of which have been referred to throughout
these reasons. Among other purposes, the defendant relies on it to emphasize
the plaintiffs use of baby oil on his body before his performance, the nature
of the performance, what occurred at various locations during his performance (both
on and off the stage) and the lack of particulars in the plaintiffs
description of the alleged hazardous substance on the stage. The plaintiffs
examination for discovery, starting at line 146, reads as follows:
Q. And take me from the time when you leave your booth that
youd been operating to the time the accident occurs.
A. Sure. Um, hypothetically they said my show was at 7:00 p.m.,
I would leave my booth at around — approximately half an hour before the
actual show would start so that I could take off my clothes that I am wearing
at the present time and use baby oil and get all, um, nice and shiny into — on
the skin and everything. Um, make sure my hair is done, get into my costume,
and then basically limber up back stage, do some push ups, just trying to look
as good as possible. …
[113] The
defendant also highlighted the fact that the plaintiff could not recall the performances
that preceded him on the evening of the incident (Plaintiffs examination for
discovery, line 185).
[114]
Regarding the plaintiffs use of baby oil, the plaintiff also explained that,
as part of his preparation for the performance, he would put baby oil all over his
body, including his legs, arms, and torso, in order to take the dryness off his
skin (Plaintiffs examination for discovery, lines 148-152).
c)
Plaintiffs evidence on the cause of his slip
[115] The
plaintiff gives minimal detail in his affidavit evidence about the nature of
the substance on the stage he alleges caused him to slip. In his first
affidavit, he simply says he slipped on a slippery substance on the stage. He
says he notified VCEC staff of his injury, and that, on multiple occasions,
they provided him with ice for his injury. Apart from Darryl Rosengreens
recollection of a conversation with the plaintiff at some point during the Show
about hurting himself during one of his dance routines, however, there is no
other witness evidence that corroborates the plaintiffs version of how he
slipped during his performance.
[116]
At para. 22 of his first affidavit, the plaintiff, in response to para. 8
of the affidavit of Rick Villaneuva, the Shows stage manager, agrees there
were many different performers on stage prior to his performance and that many
of them had a variety of substances incorporated into their performance. Mr.
Villaneuva, however, did not state many of the performers had incorporated a
variety of substances into their performance. At para. 8 of his affidavit, Mr.
Villaneuva states:
There were many different performers who performed on stage
prior to the Plaintiffs dance routine, including a large troop of fire dancers
and also a troop of can-can girls. I do not recall any performers or anyone
else telling me about any body paint or any other slippery substance being left
on the stage.
d)
Evidence regarding the nature of the alleged substance on the stage
[117] The
plaintiff states at line 260 of his examination for discovery that when he was
packing up his stuff after his performance, he found some kind of greasy
stuff in the area where he slipped that he believed he had slipped on.
[118]
When asked if it was possible he had stepped in a substance in the floor
area prior to remounting the stage, he said at line 345 of his examination for
discovery:
I guess anything is possible. But being carpet, if there was
something wet on your foot, as soon as you stepped into carpet — I know at my
front door I have a carpet where I wipe my feet and then I walk in. It takes
the wetness off. So when I jumped up onto the stage, even if there was
something on the bottom of my shoe from the floor area, to it still being on my
shoe it would be a stretch.
e)
Evidence of Rick Villaneuva (the stage manager)
[119] As
mentioned, Rick Villaneuva was the stage manager of the Show. He states in
para. 4 of his affidavit that as stage manager and emcee, he watched all of
the performers at the Show, including the plaintiff. He said he would have
watched the plaintiff perform on the evening of January 13, 2007, but he does
not recall seeing him slip or injure himself during his performance. He also
states he did not see or hear of any indication that he had injured himself in
any way. He also denies any specific recollection of speaking with the
plaintiff before or after his performance and states at para. 6 that I would
have remembered if he had said anything to me about having injured himself in
any way or if he had told me about any slippery substance on the stage.
[120] I should note
here that I am not questioning that the plaintiff sustained an injury at some
point during his performance and I accept he may have had some difficulty
completing it. However, there is no evidence that the plaintiff brought the
presence of the hazardous substance that he alleges was on the stage to the
attention of Mr. Villaneuva or anyone else by specifically pointing it out to
them.
[121] Mr.
Villaneuva also states in para. 7 that Canwest requires all people involved
with the production of the Show to report injuries that happened to anyone, but
I note that Terra Connors states in her affidavit that she was not aware of
that specific requirement.
[122]
Mr. Villaneuva also says that although he does not specifically recall
doing so, he would have visually inspected the stage throughout the Show,
including before and after the plaintiffs routine. He states the following at
para. 9:
I do not recall seeing any body paint or any other slippery
substance on the stage, either prior to or after [the plaintiffs] performance.
Had I noticed that such a substance was present, I would have directed that it
be cleaned up right away.
f)
Evidence of Darryl Rosengreen
[123]
In his affidavit sworn September 16, 2011, Darryl Rosengreen, who was
the Show manager, states at para. 9 that he has no specific recollection of
watching the plaintiff perform his dance routine. As mentioned earlier, he
recalled a discussion with the plaintiff at some point during the course of the
Show when the plaintiff had indicated to him that he thought he might have hurt
himself during one of the dance routines. Mr. Rosengreen states the following
at para. 10 of his affidavit:
However, he did not say anything
to me about how or when this happened. He did not say anything to me about
slipping on any substances or about his knee in particular. He did not indicate
that his injury was anything serious and as such I did not think anything
further of it.
g)
Conclusion on whether the plaintiff has established what hazard or
condition caused his slip
[124] In
essence, the plaintiff asserts there was a slippery substance on the stage; and
he speculates that it may have been body paint deposited during a performance
that took place four hours earlier. I find this conclusion requires undue
speculation; the evidence fails to show on a balance of probabilities that there
was a slippery substance on the stage at the material time.
[125] The
speculative nature of the theory advanced by the plaintiff is heightened when
one bears in mind the following factors:
a) There
is minimal independent evidence the plaintiff reported the alleged slip after
his performance. I note the previously distilled evidence of Mr. Rosengreen refers
only the plaintiffs having discussed sustaining an injury during one of his
performances, but not to the mechanism of the injury or its cause.
b) The
fact that the stage and runway area was covered with carpet (common experience
and common sense say the presence of an oily substance on carpet instead of a
hard surface reduces the likelihood the plaintiff would have slipped, a point
the plaintiff implicitly acknowledges in his examination for discovery at line
345). But since neither party led evidence on the nature of the carpet, I do
not place much weight on this consideration.
c) The
performance schedule reveals that the most recent body painting show was at
6:20 p.m. that evening, four hours before the plaintiffs 10:40 p.m.
performance. From 6:20 p.m. until 10:40 p.m., none of the performances refer to
body paint, which the plaintiff postulates as the likely cause of his slip.
d) The
several performances between the live body painting show and the plaintiffs
performance appear to have proceeded uneventfully; there is no evidence of any
performer reporting the presence of a slippery substance on the stage. Indeed,
the plaintiffs earlier performances had also been routine; and during the performance
in which he injured his knee, he moved without incident at least once over the
same area of the stage where he says he later slipped on a substance. The
plaintiff has not adduced any evidence on the nature of the body paint on which
he alleges he slipped.
[126] Even if I
were to accept that the cause of the slip was a slippery substance, I cannot
accept the plaintiffs assertion that finding in his favour would not involve
speculation. In my view, the speculative aspect of the plaintiffs case would
then be the source of the substance as opposed to its presence. I
find the possibility that the substance on which he slipped was residue from
the baby oil that he had spread on his body prior to his performance, which had
inadvertently transferred onto the stage during his performance, is as equally
plausible as the possibility he slipped on body paint left from a display four
hours earlier.
[127] Moreover,
the medical evidence reveals that the slip may have been caused by an
antecedent knee injury; that is to say by something independent of any contact
with an oily substance on the stage. This factor is discussed in more depth
later in these reasons, but I mention it at this point to highlight that this
prior injury may have been the cause of the slip, independent of any slippery
substance present on the stage.
[128] For the foregoing
reasons, I find the plaintiff has failed to establish a prima facie breach
of the duty of care imposed by the Occupiers Liability Act and by the
common law. I arrive at this finding because the plaintiff failed to identify,
on a balance of probabilities, what condition or hazard caused him to slip.
4.
Has the plaintiff established that the defendants breach of its duty of
care caused the hazard to be present?
[129] As I have
found the plaintiff failed to identify what hazard caused the slip, it is not
necessary to consider whether he has established that the presence of the
hazard was caused by the defendants breach of its duty of care. Nonetheless, I
find that even if the plaintiff had successfully identified the hazard that
caused the slip, the plaintiff has not adduced sufficient evidence to establish
that the hazard was present because of the defendants failure to provide a
reasonably safe performance environment.
[130] The only
evidence as to standard of care in the case at bar is found in the affidavit of
Rick Villaneuva, the stage production manager of the Show. In his affidavit,
Mr. Villaneuva states at para. 4 that he watched all the performers at the
Show, including the plaintiff. Mr. Villaneuva also states at para. 9 that he
would have visually inspected the stage throughout the Show, including before
and after the Plaintiffs routine, although he does not specifically recall
doing so. He goes on in that paragraph to state that he did not recall seeing
any body paint or any other slippery substance on the stage, either prior to
or after his performance and that, if he had noticed such a substance, he
would have directed that it be cleaned up right away.
[131] Where
there is evidence of a prima facie breach of the Occupiers Liability
Act, an occupier may refute the breach by calling evidence to show that it
had put into operation a reasonable scheme which was being followed at the time
of the incident: Atkins v. Jim Pattison Industries Ltd. (1998), 61
B.C.L.R. (3d) 183 at 184 (C.A.). Also see Davis v. Kins Farm Market (Lynn
Valley) Ltd., 2010 BCSC 677, at para. 35.
[132] Given Mr.
Villaneuvas evidence on his practices to ensure a safe performance environment
at the Show, and with no reason to reject it; and given the absence of evidence
from the plaintiff to show any failure by the defendant to provide a safe
performance environment, I find the plaintiff has not established on a balance
of probabilities that the defendant breached the duty of care it owed to the
plaintiff.
5.
Conclusion on standard of care
[133] For the
above reasons, I find that the plaintiff has failed to establish the defendant
breached its duty of care as an occupier. The plaintiff has failed to
identify what hazard caused him to slip during his performance and, even if he
had succeeded in doing so, he has failed to adduce sufficient evidence to
establish that the hazard was present due to the defendants failure to provide
a reasonably safe performance environment. As the standard of care is the same
under the Occupiers Liability Act as it is in negligence, I find the
plaintiff has also failed to establish that the defendant breached the duty of
care it owed the plaintiff at common law.
B.
Causation – has the plaintiff proved the defendants negligence caused
his injury?
[134]
Even if the plaintiff can satisfy the Court on a balance of
probabilities that the defendant breached its duty of care, which I find he has
failed to do, he must still prove the defendants negligence caused his injury:
Tran, at para. 80. In Ng v. Sarkaria, 2011 BCSC 1643, Butler J. provides
a concise review of the governing principles of causation:
[7] The law regarding causation is not controversial,
even though the application of the law to the facts is often difficult. A
plaintiff must establish on a balance of probabilities that the defendants
negligence caused or materially contributed to an injury. The defendants
negligence need not be the sole cause of the injury so long as it is part of
the cause beyond the de minimus range. Causation need not be determined
by scientific precision: Athey v. Leonati, [1996] 3 S.C.R. 458, at
paras. 13-17.
[8] The primary test for causation asks: but for the
defendants negligence, would the plaintiff have suffered the injury? The but
for test recognizes that compensation for negligent conduct should only be
made where a substantial connection between the injury and the defendants
conduct is proven: Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, at
paras. 21-23.
[9] Causation must be established on a balance of probabilities
before damages are assessed. As McLachlin, C.J.C. stated in Blackwater
v. Plint, [2005] 3 S.C.R. 3, at para. 78:
Even though there may be several
tortious and non-tortious causes of injury, so long as the defendants act is a
cause of the plaintiffs damage, the defendant is fully liable for that damage.
The rules of damages then consider what the original position of the
plaintiff would have been. The governing principle is that the defendant
need not put the plaintiff in a better position than his original position and
should not compensate the plaintiff for any damages he would have suffered
anyway: [Athey v. Leonati].
[10] The most basic
principle of tort law is that the plaintiff must be placed in the position he
or she would have been if not for the defendants negligence, no better or
worse. The tortfeasor must take his or her victim as they find them, even
if the plaintiffs injuries are more severe than they would be for a normal
person (the thin skull rule). However, the defendant need not compensate
the plaintiff for any debilitating effects of a pre-existing condition which
the plaintiff would have experienced anyway (the crumbling skull rule): Athey
v. Leonati, at paras. 32-35.
[135] Put
plainly then, the plaintiff must prove that but for the negligent act or
omission of the defendant, the injury would not have occurred: Resurfice
Corp. v. Hanke, 2007 SCC 7, at para. 21.
1.
Medical evidence relating to causation and the plaintiffs pre-existing
knee injury
[136] Canwest
contends it is not only the presence of a hazardous substance on the stage that
is unproven by the evidence. Also cast into doubt is whether there is any link
between the alleged slip and the knee injury the plaintiff says he sustained as
a result. This contention has some merit, in as much as before his slip, the
plaintiff experienced problems in his right knee that closely correspond with pain
descriptions he gave to physicians following his slip. Also notable is the
plaintiffs apparent failure after the slip to assert a link between his knee
symptoms and a slip on a slippery substance as their precipitating cause.
[137] The
earliest clinical mention of the plaintiffs injury is the MSA General Hospital
emergency record dated January 15, 2007. The reason for the visit is stated as:
painful right knee January 13, 2007, knee locked up. The nurses notes refer to
a patella injury in 1998 that was followed by surgery and then state, now
chronic locking of right knee, now locked and cannot fully extend.
[138] In an
undated Short Stay Emergency Assessment Record, under the section entitled Pertinent
history related to presenting complaint, the following appears: knee locked
up on Saturday night – no pop heard, reduced mobility and pain. Under Past
Medical History the record states detached patella May/98.
[139]
Dr. David Wickham, an orthopedic surgeon who later performed surgery on
Mr. Newshams knee, wrote the following chart note dated January 17, 2007:
Thank you very much for asking me to see Randy Newsham who is
a very pleasant 29, almost 30-year-old gentleman. He is a dancer and was doing
a particular move several days ago when his right knee locked. He has been
having intermittent episodes of locking in his knee for the last couple of
years. He has never had any problems with instability.
He had a significant patellar
fracture in 1998 that required repair. He then had a patellar tendon rupture
which he then underwent repair in 1999. He had the figure-of-eight wire removed
in the third operation. Since then he has had occasional patellofemoral
discomfort, but he has never had any significant problems with his knee.
[140]
Dr. Wickham diagnosed a likely locked right knee with a lateral meniscus
tear. Responding to the defendants contentions the plaintiffs injury after
the slip stemmed from his prior knee condition, the plaintiffs counsel
requested clarification from Dr. Wickham. He provided it in a short medical-legal
report dated October 25, 2011. In it, he confirmed he had reviewed his written
notes and confirmed the plaintiff did have a history of intermittent locking in
his right knee following a patellar fracture that occurred in 1998. In that
same incident, Dr, Wickham states:
He also ruptured the patellar tendon which required repair.
He then required a third operation to remove the wire. His intermittent locking
was referable to the patellofemoral joint. It was not referable to any pain
along the lateral joint line.
[141]
Dr. Wickham confirmed, as well, that the symptoms the plaintiff experienced
following his slip were new to him and that he had never experienced pain along
the lateral joint line previously. He states:
His MRI investigation demonstrated a complete tear of lateral
meniscus. It is unlikely that this would have been the cause of his
intermittent locking as this tear was very large and sizable and would have
been giving him significant symptoms of internal derangement in the years prior
to this slip and fall.
Therefore in my opinion based
upon review of the notes and his consultation report I would feel that his
intermittent blocking was likely caused from patellofemoral changes as a result
of the patella fracture sustained in 1998 and not related to the lateral
meniscus tear that he presented with in January 2007. The lateral meniscus tear
was a new injury.
[142] The
defendant responds, in argument, that Dr. Wickham did not make any reference to
a slippery substance. Nor did he give an opinion on the nature of the slip and
how it might have biomechanically caused his meniscus tear. He also did not
opine on the question of whether a right knee lockup caused by the patella
fracture could have precipitated the slip and subsequent injury. On his
examination for discovery, the plaintiff agreed it was possible he told
whomever he saw at the hospital that his knee had locked during the performance
(Plaintiffs examination for discovery, line 491).
[143]
On examination for discovery, counsel questioned the plaintiff regarding
Dr. Wickhams clinical records, which indicated that he had advised him his
right knee had locked. In answer, the plaintiff explained that:
I dont understand where this
locked is coming from. When I mentioned anything about my knee it was I slid
forward and the leg or knee locked — like went — when it went straight
sliding forward, it straightened out and kind of, like, sort of like flexed or
straightened out entirely. And in that straightened state, yeah, it felt like
there was a locking kind of. And then as soon as I followed through with my
step with the right leg is when I felt the excruciating pain in my knee. From
what Im told from Wickham is thats when the tendon was — or the meniscus
flap or whatever its called, um, ripped.
[144]
Counsel for Canwest also put the first paragraph of Dr. Wickhams letter
to the plaintiff at line 524 of his examination for discovery, wherein Dr.
Wickham wrote:
He is a dancer and was doing a
particular move several days ago when his right knee locked. He has been having
intermittent episodes of locking in his knee for the last couple of years.
[145]
Counsel for Canwest would go on to ask the plaintiff the following
questions at line 525:
Q. Does that refresh your memory at all in terms of relaying
to Dr. Wickham that you had been having intermittent episodes of locking in
that knee for the last couple of years before your fall?
A. Does that what? What was the question?
Q. Refresh your memory at all in terms of those episodes of
locking that hes talking about?
A. Yeah. Its because when you get on the Lifecycle to try
and get the wheel around, um, it would, ah, click or feel like theres a
locking type and then you just got to work through it and then get the pedal
all the way around again and work through it. Its — I was told it was scar
tissue building up. That if you dont then youre gonna lose your range of
motion. And thats why I was verbalizing it on a regular basis. I just wanted
to keep my doctor fully aware of my progress and aware.
Q. Well, I had just asked you, Mr. Newsham, a few moments ago
whether you recall any specific incidents where it locked and youve told me
no. And now youve just told me about a specific incident involving a
Lifecycle. Are there are any other specific incidents wherein this knee would
lock before this fall?
A. Probably, but I just cant
think of them off the top of my head. …
[146] Even if
the plaintiff had succeeded in establishing that the defendant breached its
duty of care, I find he has failed to establish on a balance of probabilities
that the defendants negligence was the cause of the injury he sustained during
the performance. Based on the medical evidence, it is just as likely that the
plaintiffs slip and resulting injury to his right knee was caused by the prior
injury he sustained in that same knee.
V.
Summary of Findings
[147] For the collateral
contract claim, I find the following:
a) the
alleged collateral contract that the plaintiff says he entered into with the
defendant is not established on the evidence;
b) the
terms that the defendant would decide the time and place of the plaintiffs
performance during the Show are implied in the exhibitors contract by virtue
of the plaintiff providing consideration for booth space in the form of
performance services;
c) the
defendant had an obligation in the circumstances to bring the Waiver Clauses in
the exhibitors contract to the attention of the plaintiff due to the fact that
the plaintiff was signing the contract both in his capacity as an exhibitor and
as a performer; and
d) the
defendant cannot rely on the Waiver Clauses because it did not bring them to
the plaintiffs attention.
[148] With
respect to the negligence claim, I find the following:
a) The
plaintiff has failed to prove the defendant breached any duty of care it owed
to the plaintiff under the Occupiers Liability Act or at common law:
i. The
evidence, considered as a whole, falls short of proving on a balance of
probabilities that a hazardous substance was present on the stage at the
material time and was responsible for the plaintiffs slip.
ii. Even
if the plaintiff had established that a slippery substance was the cause of his
slip, it is equally likely that the slippery substance in question was residue
of baby oil the plaintiff used for his performance as it was body paint left from
an earlier performance on the stage.
iii. Moreover,
it is also possible that the slip was caused by the plaintiffs prior knee
injury and thus independent of any slippery substance.
iv. Even
if the plaintiff had successfully identified a slippery substance as the cause
of his slip, particularly the body paint from a prior performance, he still
failed to establish that its presence was caused by the failure of the
defendant to provide a reasonably safe environment in which he would perform.
b) Even
if the plaintiff had succeeded in proving the defendant breached its duty of
care, he would have still failed to prove the defendants negligence as the
cause of the injury he sustained, which I find the evidence, considered as a
whole, shows was just as likely precipitated by the prior condition in his right
knee as by the presence of a slippery substance on which he may have slipped during
his performance.
c) I
find it equally likely that any slip and resulting injury the plaintiff
experienced related to the nature of his performance and the condition of his
knee at the time of the performance as to the presence of a hazardous substance
on the stage.
VI.
Conclusion
[149] Based on
the above findings, I dismiss the plaintiffs claim.
[150]
The defendant is entitled to its costs at Scale B; though if either
party wishes to speak to costs, they may do so in brief written submissions,
forwarded to the trial coordinator in Chilliwack.
N. Brown J.