IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140814

Docket: S103436

Registry:
Victoria

Between:

Adam
Kerr

Plaintiff

And

Global
Investments House Inc. dba
Greenbrier Hotel

Defendant

Before:
The Honourable Madam Justice Warren

Reasons for Judgment

Introduction

[1]            
The plaintiff, Mr. Kerr, injured his left shoulder when he fell
while leaving the Greenbrier Hotel (the “Hotel”) in Vancouver on the morning of
August 28, 2009. He alleges he suffered and continues to suffer pain,
disability, loss of enjoyment of life, and loss of amenities as a result. He
also alleges that as a result of the injuries and the associated pain, he
became addicted to opiate painkillers and then to heroin, which led to a
four-year downward spiral in his life.

[2]            
Mr. Kerr alleges that the fall occurred as a result of the breach
by the defendant of the duties imposed on an occupier, by the Occupiers
Liability Act, R.S.B.C. 1996, c. 337, to take reasonable steps to
ensure that premises are reasonably safe. Specifically, he alleges that he
slipped and fell due to the defendant’s negligence in failing to warn of the
hazard posed by excessively slippery tiles on the landing outside the front
doors of the Hotel. He alleges the tiles on the landing were slippery due to
the presence of water from a hose being used in front of the Hotel by a Hotel
employee. He says he slipped on the landing, fell forward over two steps, and
landed directly on his shoulder on the sidewalk.

[3]            
Liability is disputed. There were no caution or warning signs in the
area at the time, but the defendant’s positon is that there was no hazard and
thus no need to warn of any hazard. Specifically, the defendant submits that the
evidence does not support a finding that the landing was wet and, even if it
was wet, that it was unreasonably slippery when wet. The defendant also submits
that even if the landing was unreasonably slippery, Mr. Kerr has not
established that this hazard caused his fall. The defendant says that Mr. Kerr’s
assertion that he slipped on the landing and fell forward over the stairs onto
the sidewalk defies the laws of physics. The defendant submits that Mr. Kerr’s
forward momentum is more consistent with a trip than it is with a slip.

[4]            
While the defendant admits that Mr. Kerr injured his shoulder when
he fell, the defendant submits this was a relatively minor injury. The
defendant’s positon is that any pain and suffering experienced by Mr. Kerr
since about early 2011 is due to subsequent accidents, including a fall in his
bathroom in April 2011, a car accident in January 2012, and a motorcycle
accident in August 2013. In particular, the defendant submits there is no
connection between Mr. Kerr’s fall at the Hotel and his subsequent drug
use.

Background

[5]            
Mr. Kerr lives in Victoria. On August 27, 2009, he and his friend,
David Kenway, drove to Vancouver from Vernon, where they had spent a week on
vacation. They had borrowed a car belonging to Jean Pierre De Fossey, another
of Mr. Kerr’s friends, for the trip. After arriving in Vancouver, Mr. Kerr
and Mr. Kenway drove to the airport to pick up Mr. De Fossey, who had
just returned that evening from Thailand.

[6]            
Mr. Kerr and Mr. Kenway had hoped to take the ferry to Victoria
later that evening. However, Mr. De Fossey’s flight did not arrive until
it was too late for them to catch the last ferry. After picking up Mr. De
Fossey, Mr. Kerr and Mr. Kenway went to the Hotel. They checked in
sometime after midnight on August 28, 2009, and Mr. De Fossey went home to
his Vancouver apartment. The plan was for Mr. De Fossey to return a few
hours later and drive Mr. Kerr and Mr. Kenway to the ferry terminal.

[7]            
The Hotel is located on the north side of Robson Street and faces south.
The entrance into the Hotel is through a set of double swinging glass doors.
Each door is attached to a glass panel which is then attached to the building.
The glass doors and panels are transparent. The doors open from the lobby
inside the Hotel onto a landing outside the Hotel. The landing is approximately
4.1 metres wide and 1.3 meters deep. It is covered by a canopy and is connected
by two steps to the concrete sidewalk on the street. Both the landing and the
steps are tiled with light colored marble stone.

[8]            
Mr. Kerr and Mr. Kenway checked out of the Hotel at
approximately 9 am on August 28, 2009. It was a sunny day. Mr. De Fossey
had returned and was sitting in his car which was parked on the street in front
of the Hotel.

[9]            
After checking out, Mr. Kerr walked through the lobby towards the
doors, with Mr. Kenway following about two meters behind. Mr. Kerr
was carrying two bags, one in each hand, each weighing approximately five
pounds. He was wearing Nike cross trainer shoes, which were approximately six
months old at the time. When he reached the doors, because he had a bag in each
hand, he turned and backed up into the door on the left, pushing it open with
his lower back or buttocks. He then turned to his left and took a step onto the
landing with his right foot. He said he then brought his left foot forward as
part of his next step. He said the front pad of his left foot touched the
ground and he was either in the process of transferring his weight onto his
left foot, or had completed the transfer of weight, when his left foot slipped
either backwards or backwards and sideways.

[10]        
Mr. Kerr said that after his foot slipped, he fell forward over the
steps, and landed directly on his left shoulder on the sidewalk. He said his
body did not come into contact with the steps and no other part of his body
struck the sidewalk as he landed. He said his shoulder took all of the impact.

[11]        
As already noted, Mr. Kerr’s position is that the tiles on the
landing were excessively slippery due to the presence of water from a hose being
used in front of the Hotel by a Hotel employee. Mr. Kerr said he did not
notice this employee until after the fall. He submits the fall was caused by
the failure of the defendant to warn him of the hazard posed by the wet
landing.

[12]        
Mr. Kerr testified that when he hit the sidewalk, he felt nauseous,
pain, disbelief, and shock. He said he was wet from being sprayed with the
hose. Two American tourists helped him get up and retrieve his bags.

[13]        
Mr. Kenway testified that as he followed Mr. Kerr out the
door, he was looking ahead, towards Mr. Kerr’s back, and he saw Mr. Kerr
suddenly fall forward onto his left shoulder. He also said he saw a maintenance
worker using a hose to clean the exterior of the building. He said this
maintenance worker was spraying the steps that lead from the landing to the
sidewalk. He said the hose was a dark colored (either black or dark green)
garden hose. Mr. Kenway said he thought Mr. De Fossey was helping Mr. Kerr
get up, so Mr. Kenway took the opportunity to look around at the surroundings
and he noted that there were no caution signs in the area.

[14]        
As already noted, there is no dispute about the lack of any warning or
caution signs in the area at the time. The defendant’s position is that the
tiles were not unreasonably slippery and so there was no hazard to warn Mr. Kerr
about. The defendant’s position is that while there was a Hotel maintenance
employee named Darren Kumar outside in front of the Hotel at the time, Mr. Kumar
was not using a hose but rather was using a watering can to water two large
potted plants that sit on the sidewalk on either side of the Hotel entrance.

[15]        
Mr. Kumar is no longer employed at the Hotel and he did not testify.

[16]        
Cinar Ayaz is employed at the Hotel and he did testify. At the time of
the trial, he was the operations manager at the Hotel. At the time of Mr. Kerr’s
fall, he was the front desk clerk and was on duty that morning. He did not
witness the fall but he heard a noise outside. He said he raised his head and
saw, through the glass doors, that someone was trying to get up from the
sidewalk. He walked through the lobby and out the front doors. He walked down
the steps onto the sidewalk. He saw a man, who I find was Mr. Kerr,
getting up from the sidewalk. He assumed the man had emerged from the Hotel. He
testified that he asked the man whether he needed anything but the man just
picked up his bag and walked away heading west along Robson Street.

[17]        
Mr. Ayaz said he also saw Mr. Kumar outside on the sidewalk
with a watering can. He said he did not see a hose. He asked Mr. Kumar
what happened and Mr. Kumar said “some drunk guy fell”. Mr. Ayaz then
returned to the front desk through the main entrance. He testified that he could
not remember whether the landing was wet at the time. He did not specifically
check. However, he recalls having no problems using the landing or the steps.
He did not experience them to be slippery. He conducted no further
investigation into Mr. Kerr’s fall. He said he considered any further
investigation to be unnecessary because he had experienced no problems going in
or out of the Hotel.

[18]        
It should be emphasized that there was no admissible evidence that Mr. Kerr
was drunk when he fell, and the hearsay relayed by Mr. Ayaz to that effect
is inadmissible for its truth. Mr. Ayaz relayed what Mr. Kumar said
because it explained, in part, why he considered no further investigation was
required.

[19]        
Mr. Kerr did not investigate the area either, but went straight to Mr. De
Fossey’s car. He thought about going to the hospital in Vancouver but decided
he would rather get home, so Mr. De Fossey drove him and Mr. Kenway
to the ferry.

[20]        
Mr. Kerr described his shoulder as being very sore and throbbing
after the fall. He said he had no other injuries.

Issues

[21]        
The following issues arise:

(a)      Is the defendant liable
for the fall? In particular:

(i)       Has Mr. Kerr
established that the defendant breached its duty to take reasonable care to
ensure the landing was reasonably safe? Specifically, has he established on a
balance of probabilities that the landing was unreasonably slippery due to the
presence of water?

(ii)      Has Mr. Kerr
established that the unreasonably slippery landing caused him to fall?

(b)      If the defendant is
liable, what damages should Mr. Kerr be awarded?

Liability

Legal principles

[22]        
The duty that an occupier of premises owes to persons who visit the
premises is set out in s. 3(1) of the Occupiers Liability Act,
which provides in material part as follows:

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 … on the premises … will be reasonably safe in using the
premises.

[23]        
In other words, an occupier has a duty to “take reasonable care in all
of the circumstances to see that a person on the premises is reasonably safe in
using the premises”: Ferrier v. Johnscross Properties (B.C.) Ltd., 2010
BCSC 492, at para. 19.

[24]        
The plaintiff must establish on a balance of probabilities both that the
occupier breached this duty, and that the breach caused the plaintiff’s loss.

[25]        
In determining whether the occupier breached its duty, the standard is
one of reasonableness, not perfection: Ferrier, at para. 23.

[26]        
The Occupiers Liability Act does not create a presumption of
negligence. In other words, the fact that the plaintiff fell does not, on its
own, establish that the occupier failed to take reasonable care to ensure that
the plaintiff was reasonably safe: Ferrier, at para. 19; Charlie
v. Canada Safeway Ltd., 2010 BCSC 618, aff’d 2011 BCCA 202.

[27]        
Evidence of prior safe use, continued safe use, and measures taken after
the fact to enhance the safety of the area are not determinative of whether the
area was reasonably safe at the time of the incident in question, but they are
factors to consider in assessing whether it was so: Robson v. Trail Bay
Developments Ltd., 2009 BCSC 806; Simmons v. Yeager Properties Inc.,
2013 BCSC 889, varied 2014 BCCA 201.

[28]        
It has been held that the failure to use a warning or caution sign on a
slippery floor amounts to a breach of the duty of care: Clark v. Royal Oak
Holdings Ltd., 2003 BCSC 275.

[29]        
Even if it is established that an occupier breached its duty by failing
to take reasonable care to ensure that its premises was reasonably safe, the
plaintiff must also prove on a balance of probabilities that the unsafe
condition caused the fall: Keraiff v. Grunerud (1990), 43 B.C.L.R. (2d)
228 (C.A.); Tolea v. Ialungo, 2008 BCSC 395, at paras. 68-69.

[30]        
The court cannot speculate when determining the cause of the plaintiff’s
fall: Ferrier, at para. 19; Zantvoort v. Welyk, 2003 BCSC
995. Having said that, causation need not be determined by scientific precision
and can be determined by the practical application of common sense: Druet
v. Sandman Hotels, Inns & Suites Ltd., 2011 BCSC 232, at paras. 14-18,
citing Snell v. Farrell, [1990] 2 S.C.R. 311.

Analysis

[31]        
The issue is whether Mr. Kerr has established both that the landing
was unreasonably slippery due to the presence of water and that this hazard
caused him to slip and fall.

Was the landing unreasonably slippery due to the
presence of water?

[32]        
The first question to be answered is whether the landing was wet. There
was no direct evidence that water was present on the landing at the time Mr. Kerr
fell.

[33]        
There were only three witnesses who observed the landing at the time in
question:  Mr. Kerr, Mr. Kenway, and Mr. Ayaz. In direct
examination, Mr. Kerr said that he “believed” the landing area where he
lost his footing was wet. However, during his examination for discovery, he was
asked to mark a photograph of the exterior of the Hotel to indicate the areas
that he observed to be wet. At that time, he marked the steps and the sidewalk as
being wet, but not the landing. In cross-examination, he confirmed that the
areas he marked during his examination for discovery indicated the areas he saw
to be wet. Mr. Kenway testified that he saw the Hotel employee spraying
the steps with the hose. He did not say that he saw water on the landing, even
though he investigated the surrounding area after the fall. Mr. Ayaz said
he cannot recall if the landing was wet.

[34]        
The question then is whether I should infer that the landing was wet
from the evidence that Mr. Kumar was hosing down the steps and sidewalk.
That requires me to determine whether he was in fact doing so. The defendant
maintains that Mr. Kumar was not using a hose at the time.

[35]        
Mr. Kerr testified that he saw a man with a hose. He said the man
was standing on the sidewalk, east of the doors. Mr. Kerr says this man
did not speak to Mr. Kerr after the fall, but rather just walked away. Mr. Kerr
could not describe the hose or say where it was connected. He did say, however,
that there was no hose running through the lobby of the Hotel, out the entrance
doors, and down the steps to the sidewalk.

[36]        
Mr. Kenway said he saw a maintenance worker using a hose to clean
the exterior of the building. He said this man was spraying down the steps.

[37]        
Mr. Ayaz testified that he did not see a hose when he went outside
after the fall and he is certain there was no hose running through the lobby
and outside the front doors at the time. He acknowledged that the Hotel owns a
light green industrial hose that is used to clean the garage, but he said that
the Hotel does not ordinarily use it to clean out front.

[38]        
Mr. Ayaz explained that the only place to connect the Hotel’s hose
to the water supply is by the garage, which is at the back of the Hotel below
the lobby level, and the only way to get the hose from there to the front
entrance is to run it up the stairs, across the lobby, and through the open front
doors, which would be disruptive to guests.

[39]        
Mr. Ayaz said that the Hotel’s hose was used only once to clean
outside the front of the Hotel but, on that occasion, the Hotel had just
completed a renovation prior to the 2010 Olympics and was not operating. The hose
was run from downstairs by the garage, up the stairs, through the lobby, and
through the open doors, but this was not a concern because the Hotel was closed
to the public at the time.

[40]        
Mr. Ayaz acknowledged that it would be possible to run a hose from
downstairs, out the back of the Hotel through the garage, around the building,
and then along the sidewalk on Robson Street, but he said the one hose that the
Hotel has is not long enough to reach all that way. He could not say how long
the Hotel’s hose was, but to his knowledge, there has only ever been the one
hose at the Hotel since he was hired in September 2008 and he was sure it was
not long enough to go around the building.

[41]        
This was confirmed by Kevin Wright, an insurance adjuster with
responsibility for investigating Mr. Kerr’s fall. Mr. Wright
testified that he went to the Hotel to investigate the possibility of running a
hose to the front entrance. He examined the building in which the Hotel is
located and found no hose bibs on the exterior of it. He measured the hose that
is present at the Hotel to be 94 feet in length and calculated the distance
from the hose bibs, through the garage, around the building, and to the front
entrance to be approximately 225 feet.

[42]        
Mr. Ayaz said that when he went outside after Mr. Kerr’s fall,
he saw that Mr. Kumar had been using a watering can to water the planters
that are located on the sidewalk, on either side of the front steps. Mr. Ayaz
testified that the normal practice of the Hotel is to water those pots with a
watering can on a weekly basis.

[43]        
Mr. Ayaz testified that Mr. Kumar was responsible for cleaning
the entrance to the Hotel on an as-needed basis, but that his practice was to
do so using a bucket and a mop.

[44]        
In summary, Mr. Kerr and Mr. Kenway both say they saw a man
using a hose at the front of the Hotel. On the other hand, Mr. Ayaz says
that he saw no hose, that the standard practice was to water the planters with
a watering can and to clean the entrance using a bucket and a mop, and that the
only way to get the Hotel’s hose to the front of the Hotel is to run it through
the lobby (which the Hotel does not do because it is disruptive to guests). The
parties agree there was no hose running through the lobby of the Hotel at the
time. However, Mr. Ayaz acknowledges that it would be possible, with a
long enough hose or with multiple hoses connected together, to run a hose
around the building from the back to the front, without going through the
lobby. It is very difficult to reconcile this evidence. I found all the
witnesses to be credible, and have found no basis for preferring the evidence
of some of the witnesses over that of the others.

[45]        
The plaintiff submits that an adverse inference should be drawn against
the defendant as a result of the defendant’s failure to compel the attendance
of Mr. Kumar at the trial. I do not agree. Mr. Kumar is no longer
employed at the Hotel. It cannot be said that it would be reasonable to assume
that Mr. Kumar would be favourably disposed to the defendant. Further,
where an uncalled witness is equally available to the other parties, an adverse
inference is unwarranted: Cranewood v. Norisawa, 2001 BCSC 1126, at para. 127.

[46]        
Having considered all of the evidence, I find that it is more likely
than not that Mr. Kumar was using a hose to spray down the steps and
sidewalk in front of the Hotel. This is because both Mr. Kerr and Mr. Kenway
say they saw him doing so and because Mr. Ayaz acknowledged that it would
be possible for Mr. Kumar to do so, even though this is contrary to the
Hotel’s standard practice. I believed Mr. Ayaz when he said he did not see
a hose out front on the day in question, but that does not necessarily mean a
hose was not present. He did not say that he investigated and found there to be
no hose. To the contrary, he did not conduct an investigation. Although I
accept Mr. Ayaz’s evidence that a hose is not ordinarily used in front of
the Hotel, at the time of the fall Mr. Ayaz was working as a front desk
clerk and did not have any formal responsibility for maintenance at the Hotel.
It is possible that, without Mr. Ayaz being informed about it, Mr. Kumar
obtained a longer hose or another hose or hoses that he connected together, and
that he ran the longer hose or hoses around the building from the back to the
front.

[47]        
The next question is whether I should infer that the landing was wet
from the fact that Mr. Kumar was hosing down the steps and sidewalk.

[48]        
In Druet, the plaintiff fell in the lobby of the defendant’s
hotel. There was no direct evidence that water was present on the floor at the
location where the plaintiff fell and at the time that she fell. There was
evidence of water at that location after she fell and there was evidence of
water in another location in the lobby. In addition, there was evidence that it
had been raining on and off throughout the day and it was raining when the
plaintiff returned to the hotel just prior to the fall. Mr. Justice Savage
found this evidence to be insufficient to lead him to conclude that there was
water on the floor at the location where the plaintiff fell.

[49]        
In Charlie, the plaintiff fell while shopping in the
defendant’s store. There was no direct evidence that there was water on the
floor prior to the fall, but the plaintiff submitted that an inference should
be drawn that her fall was caused by water that had dripped from the nearby
flower display. There was evidence that at times (though not specifically at
the time of the plaintiff’s fall) there was water around the flower display,
that when flowers were taken from the display water could drip to the floor,
the amount of water on the floor around the display could be significant at
times, and the floor would be slippery if there was water on it. The Chambers Judge
refused to infer that there was water on the floor at the time the plaintiff
fell. This conclusion was upheld by the Court of Appeal.

[50]        
In Van Slee v. Canada Safeway Ltd., 2008 BCSC 107, the plaintiff
slipped near the customer service desk in the defendant’s store. There was no
direct evidence that the floor was wet. However, the weather was rainy and the
plaintiff submitted the only reasonable explanation was that persons at the
customer service desk were holding umbrellas that dripped on the floor. Mr. Justice
Cohen held that the plaintiff’s submission was mere speculation and concluded
that she had failed to prove the existence of a hazardous condition.

[51]        
In my view, the reasoning in the above-noted authorities is applicable
to this case. I am not persuaded that it would be appropriate to infer that
there was water on the landing from the fact that Mr. Kumar was hosing the
steps and sidewalk. First, Mr. Kenway testified that he conducted an
investigation of sorts, by looking around the area after the fall. Given the
fall and the presence of Mr. Kumar with a hose, if the landing was wet, Mr. Kenway
would surely have noted that and testified about it. Second, I accept Mr. Ayaz’s
evidence that the Hotel’s standard practice is to clean the landing and stairs
with a bucket and a mop. It is unlikely that a person would use a hose to spray
down the landing because doing so would cause water and dirt to spray up against
the glass doors. For the same reason, a person using a hose to spray the stairs
would likely take care not to spray the landing. In these circumstances, it
would be speculative to find that there was water on the landing. Mr. Kerr
has failed to establish that there was water on the landing.

[52]        
Mr. Kerr did not suggest that the tiles on the landing were
excessively slippery even when dry. He asserted that water on the tiles created
the hazard that gave rise to the Hotel’s duty to warn. However, in case I am
wrong in concluding that he has failed to establish that there was water on the
landing, I will address whether the tiles were excessively slippery when wet.

[53]        
The evidence that would support a conclusion that the tiles were
unreasonably slippery is very thin.

[54]        
Mr. Kerr, of course, testified that he slipped. However, he gave no
other evidence about the condition of the tiles. For example, he did not check
the tiles after the fall to test their slipperiness.

[55]        
Mr. Kenway walked on the landing right after Mr. Kerr. He did
not say it was slippery. He was not even asked if it was slippery. One would
expect that after seeing his friend fall, Mr. Kenway would check to see if
the tiles were slippery. He said he looked around to check the surroundings and
yet he did not say whether he ran his feet across the tiles to determine
whether they were slippery.

[56]        
Mr. Ayaz walked on the landing right after Mr. Kerr and Mr. Kenway.
He testified that he did so without any problem.

[57]        
Mr. Ayaz also testified that he uses the front entrance to the Hotel
at least five to six times each workday and has never had any problem with the
steps or the landing. Although the landing is covered with a canopy, he
testified that if it is raining heavily the landing does sometimes get wet.
Nevertheless, he has never experienced unusual slipperiness. He also testified
that he is not aware of any complaint about the steps or the landing in the
time he has worked at the Hotel (since September 2008). He said that
maintenance and incident logs have only been maintained at the Hotel since 2010
so he was relying on his memory for the prior time period.

[58]        
In cross-examination, Mr. Ayaz agreed that the surface of the
landing is smooth and if it was wet it would be slippery. However, when that
evidence is considered in context and in relation to Mr. Ayaz’s evidence
as a whole, it was apparent that he was speaking about the condition of the
floor when being washed with detergent. After agreeing that the floor could be
slippery, he said that if the landing was wet it would be prudent to use a
caution sign. He testified that caution signs are used when the floor is being
washed with hot water and detergent. When asked during his examination for
discovery whether the landing would be slippery if it was wet, he said, “it
could be wet – it could be slippery. It depends on how we wash it.”  He
confirmed that is why the caution signs are used when the floor is being washed.
Further, Mr. Ayaz’s evidence that he has personally used the landing on
virtually a daily basis for several years and has never experienced a problem
with it, even when it is wet from the rain, and his evidence that he has never
had a complaint about the slipperiness of the floor, suggests that when he
agreed the floor could be slippery he must have meant when it was being washed
with detergent.

[59]        
Finally, the expert evidence relied on by the defendant supports the
conclusion that the landing was not excessively slippery even when wet. Dr. Panchangam
is a forensic scientist and biomedical engineer who was retained by the
defendant to prepare an expert report. He testified about the slip resistance
of the surface of the landing under both wet and dry conditions.

[60]        
Dr. Panchangam used an English XL Variable Incidence Tribometer to
determine a coefficient of friction for the surface of the landing. A
coefficient of friction is a measurement of the slipperiness of a surface. Dr. Panchangam
testified that a surface with a coefficient of friction of 0.4 is considered to
be a good, non-slippery surface, and, the higher the coefficient, the better.
In his opinion, a coefficient of friction of 0.35 is acceptable. He referred to
research showing that 6% of people would slip on a surface with a coefficient
of friction of 0.31.

[61]        
Dr. Panchangam used the Tribometer to conduct tests on the Hotel
landing in multiple directions and under both dry and wet conditions. His tests
measured the slip resistance of the surface of the landing to be 0.54 ± 0.02 when dry and 0.44 ± 0.02 when wet. Dr. Panchangam
also walked on the landing several times, in his dress shoes, under both wet
and dry conditions and testified there was no noticeable slipperiness. He
acknowledged that he was cognizant of what he was doing and that may have
caused him to adjust his manner of walking. Dr. Panchangam’s opinion was
that, “based on [his] experience of walking on the landing surface in front of
the Hotel, and the slip resistance measurements, the tiled surface of the
landing was not slippery”.

[62]        
Mr. Kerr’s counsel submitted that Dr. Panchangam should have
tested the surface of the landing with the presence of detergent that would
have been used if the landing was being washed. However, there was no evidence
of any detergent being present on the landing at the time of Mr. Kerr’s
fall.

[63]        
In summary, Mr. Kerr said he slipped, but he gave no evidence about
having actually assessed the general slipperiness of the tiles. Mr. Kenway
walked on the landing right after Mr. Kerr but gave no evidence about the
slipperiness of the tiles. Mr. Ayaz walked on the landing right after Mr. Kerr
and testified that he had no problem doing so. He also testified that he has
walked on the tiles virtually daily for years, including when they were wet
from the rain, and has not found them to be slippery and he is not aware of any
complaints about the tiles being slippery. He did acknowledge that they could
be slippery when washed with detergent but there is no evidence the landing was
being washed with detergent at the material time. Dr. Panchangam did not
find any noticeable slipperiness when he walked on the landing under both wet
and dry conditions. Further, on the basis of the results of his slip resistance
testing, Dr. Panchangam formed the opinion that the landing was not
slippery even when wet. The plaintiff produced no expert evidence critiquing
the results of Dr. Panchangam’s testing or conclusions or providing other
results.

[64]        
None of these factors on its own establishes that the tiles were safe.
In particular, in my view, the coefficient of friction as measured by Dr. Panchangam
is not, on its own, sufficient to conclude that the landing was safe. However, Mr. Kerr
bears the burden of establishing that the landing was hazardous when measured
against a standard of reasonableness, not perfection. Having considered all of these
factors in combination, I conclude that he has not met that burden.

[65]        
For the foregoing reasons, I find that Mr. Kerr has not established
that the defendant breached the duty of care it owed to him.

Causation

[66]        
If there was a breach, and I am wrong in concluding there was not, it
does not necessarily follow that it was the breach that caused the fall.

[67]        
Mr. Kerr submits, in effect, that there is only one possible
explanation for his fall – that is, that he slipped on the wet landing.

[68]        
The defendant submits that Mr. Kerr’s assertion that he slipped on
the landing and fell forward over the stairs onto the sidewalk defies the laws
of physics, and that his forward momentum is more consistent with a trip than
it is with a slip.

[69]        
Mr. Kerr testified about the sequence of his movements leading up
to the fall. He was firm in relaying certain aspects of this evidence. For
example, he was firm when he said he slipped and he specifically denied
tripping. He was firm when he said he fell forward, over the steps, and landed
directly on his shoulder on the sidewalk. He was firm when he said that no
other part of his body, such as his legs, struck the steps on the way down, and
that no other part of his body was injured.

[70]        
Mr. Kerr was uncertain with respect to other aspects of his
movements. For example, there was some uncertainty in his evidence about
whether his first movement while pushing open the door was a backwards step or
more of the shuffle. At one point, he said that his body was square or directly
facing the street when he slipped but at another point he said that he thought
he was on an angle to the street and there was some uncertainty as to whether,
if at an angle, he was facing more to the left or more to the right. There was
some uncertainty as to whether his left foot slipped backwards or backwards and
sideways. He was uncertain in his evidence as to whether he was still in the
process of transferring his weight to his left foot at the time of the slip or
whether he had completed the weight transfer and already lifted his right foot
when he slipped.

[71]        
It is not surprising that Mr. Kerr does not recall with precision
each movement of his body leading up to the fall. However, this does present
some difficulty in determining what caused the fall, particularly given that Mr. Kenway,
the only witness to the fall, did not notice the position of Mr. Kerr’s
feet leading up to the fall or even the specific location of the fall.

[72]        
In addition to testifying about the slip resistance of the surface of
the landing, Dr. Panchangam also testified about the physics and
biomechanics of a slip and fall. In his opinion, the reported manner in which Mr. Kerr
fell “had various inconsistencies with the physics and biomechanics of a slip
and fall”.

[73]        
While there was much emphasis, at the trial, on the specifics of each of
Mr. Kerr’s movements leading up to the alleged slip and fall, there were
two aspects of Mr. Kerr’s evidence that provided the foundation for Dr. Panchangam’s
opinion. The first was whether Mr. Kerr had already transferred his weight
to his left foot before the alleged slip. Dr. Panchangam testified that if
Mr. Kerr was still in the process of transferring his weight to his left
foot, he would have slipped backwards, which is inconsistent with Mr. Kerr’s
firm recollection that he fell forward. If Mr. Kerr had already
transferred his weight to his left foot and was in the process of swinging his
right foot forward as part of his next step, in Dr. Panchangam’s opinion,
he could have fallen forward but, in that case, his body would have dropped and
his legs or foot would have made contact with the steps. This is inconsistent
with Mr. Kerr’s firm recollection that no other part of his body, such as
his legs, struck the steps on the way down.

[74]        
The second problem identified by Dr. Panchangam regarding Mr. Kerr’s
evidence concerned the nature of the injury suffered by Mr. Kerr. Mr. Kerr’s
evidence was that the only physical injury he suffered was an injury to his
shoulder and it did not include any bone fracture. In Dr. Panchangam’s
opinion, Mr. Kerr could have tripped, and if he tripped, he could have
been propelled forward, over the steps, landing directly on his shoulder
without any other part of his body first contacting the ground. However, in
that case, in Dr. Panchangam’s opinion, the impact would have had enough
force to fracture one or more bones in Mr. Kerr’s shoulder, and it is
likely that his head would also have struck the ground.

[75]        
Dr. Panchangam offered the hypothesis that Mr. Kerr tripped
and that his legs did in fact strike the ground before his shoulder, but that
the force was mitigated by his bags coming between his legs and the ground. Dr. Panchangam
said this would explain the lack of any leg injuries and the lack of a more
serious shoulder injury.

[76]        
It is clear on the evidence that Mr. Kerr fell forward and not
backward. On the basis of Dr. Panchangam’s evidence, he either slipped
after completing the weight transfer to his left foot or he tripped but, in
either of those scenarios, his legs would have hit the steps first before he
landed on his shoulder. This would be consistent with the lack of any bone
fracture in the shoulder but inconsistent with both Mr. Kerr’s firm
recollection that his legs did not strike the steps and the lack of any injury
to his legs. The only explanation, on the evidence, is Dr. Panchangam’s
hypothesis that Mr. Kerr’s bags came between his legs and the ground and
thus softened the blow, but that is nothing more than speculation and, in any
event, is inconsistent with Mr. Kerr’s evidence that he threw the bags
into the air when he fell.

[77]        
I am unable to determine, on the evidence, the likely cause of Mr. Kerr’s
fall. As already noted, even if it was established that the defendant breached
its duty by failing to warn of an unsafe condition, Mr. Kerr must also
prove on a balance of probabilities that the unsafe condition caused the fall.
While causation need not be determined by scientific precision, the court
cannot speculate. For the foregoing reasons, I find that even if the defendant
breached its duty to Mr. Kerr, Mr. Kerr has failed to establish on a
balance of probabilities that the defendant’s breach caused his fall.

Conclusion

[78]        
Mr. Kerr has not established that the defendant is liable for the
fall. In the circumstances, it is not necessary to address the quantum of
damages. The action is dismissed with costs to the defendant.

“Warren
J.”