IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141217

Docket: S143346

Registry:
New Westminster

Between:

Andrew Petersen

Plaintiff

And

Kevin Mulrooney
dba Sniper’z Outdoor Paintball Adventures,

Soowahlie Band and

Soowahlie Band
Council

Defendants

Before:
The Honourable Madam Justice Fitzpatrick

Reasons for Judgment

Introduction

[1]            
The defendant, Kevin Mulrooney, operates a paintball business known as Sniper’z
Outdoor Paintball Adventures located in Chilliwack, BC. The operations take
place on the Indian Reserve of the defendant, Soowahlie Band, acting through
the defendant, Soowahlie Band Council.

[2]            
The plaintiff, Andrew Petersen, alleges that his right eye was injured
on July 10, 2010 while he was paintballing at Sniper’z. The allegation at trial
was that he was given a faulty mask that allowed paint to penetrate and hit his
eye. Mr. Petersen alleges loss and damage as a result of that injury.

[3]            
Mr. Mulrooney denies that Mr. Petersen was injured as a result
of the paintballing. In the alternative, he denies that any injury arose from
his or his employees’ negligence. Mr. Mulrooney also denies the damages
claimed if he is found liable.

[4]            
Soowahlie Band and Soowahlie Band Council, who I will collectively call
the “Soowahlie defendants”, were served with the notice of civil claim but did
not respond by filing a response. Accordingly, on April 3, 2013, default
judgment was noted against them with damages to be assessed. They similarly did
not attend at trial.

Background Facts

[5]            
Paintball is a sport where players compete individually or in teams to eliminate
their opponents by shooting them with paintballs. Paintball is typically played
outdoors.

[6]            
The equipment used in paintball is fairly basic, although the technology
used in the equipment is not. Players usually don coveralls to avoid paint
splattering their personal clothing. Players use a paintball gun from which the
paintballs are projected at a fairly high rate of speed of between 250 to 280 feet
per second. The paintballs themselves are different coloured small (0.68” or
caliber) gelatin capsules containing a non-toxic, biodegradable and
water-soluble substance. The most important piece of equipment used is the mask
or goggle system. This is especially important in order to protect players from
being hit with paintballs in the head area and particularly the eyes. It is
invariably a primary paintball safety rule, just as it was and is at Sniper’z, that
masks be worn at all times while on the field where paintballing is taking
place.

[7]            
Mr. Mulrooney is 46 years of age. He has been playing paintball for
almost 30 years and he has had extensive experience in the sport. By all
accounts, he appears to have attained some renown within paintball circles in
North America. Mr. Mulrooney has been fortunate enough to translate his
passion for paintball into his business at Sniper’z which he has run for
approximately 16 years. Mr. Mulrooney describes his business as one that
is well-known in the community. Many types of people come to play paintball
there, including church groups, children’s groups and even professional and semi-professional
paintballers as well as military and police groups.

[8]            
Mr. Petersen entered the picture on July 10, 2010 when he played
paintball at Sniper’z with a group of male friends and family members. The
reason for the paintball outing was as part of the “stag” celebrations for Mr. Petersen’s
future nephew-in-law. There were about 10-12 men in the group, including Mr. Petersen
and other family members, such as his brothers-in-law, David Collins and Daniel
LeMond.

[9]            
The group arrived at Sniper’z at about 1:00 pm. None of the men had
their own paintballing equipment. No one was asked to sign a waiver, a decision
that I am sure Mr. Mulrooney now regrets.

[10]        
All of the members of the group were issued the necessary equipment,
which included coveralls, a paintball gun, paintballs and a mask. Mr. Petersen
says that he was behind in getting ready with the equipment since he was busy
paying for the paintballing.

[11]        
All of the members of the group were given the required orientation by Mr. Mulrooney
who advised all group members of the applicable rules. I am satisfied that one
of the specific safety rules discussed at that time was that masks were to be
worn at all times on the field and only removed in the safe zone where there
was netting to protect people from ongoing play.

[12]        
The paintball game seemed to proceed without incident until the end when
everyone, save for Mr. Petersen and Mr. LeMond, ran out of paintballs.
At that point, they decided to have a “wild west” style shootout, with them
starting back to back, taking ten paces or so and then turning and shooting
each other. All of the other members of the group waited or watched in the safe
zone for this to take place.

[13]        
The critical time is when Mr. Petersen and Mr. LeMond turned
to shoot. All of the evidence points to Mr. Petersen having his mask on at
this time. Mr. LeMond says that when they turned, he shot and missed and Mr. Petersen’s
gun jammed. Mr. Petersen then started to run away and Mr. LeMond continued
to shoot him. Mr. Petersen confirmed that his paintball gun jammed and
that he started to run away. He says that Mr. LeMond was on his left side such
that he would have been at about a 90 degree angle from Mr. LeMond. He
says that Mr. LeMond shot him on his left side.

[14]        
Mr. Petersen claims that he was not sure where he was shot but that
paint “went into his right eye”. After he was hit, Mr. Petersen dropped to
his knees. Mr. LeMond came over to help Mr. Petersen get to the safe
zone. After Mr. Petersen got to the safe zone, Mr. Petersen was
looking to flush out his eye. He eventually got a bottle of water from Mr. LeMond
and he poured it on his eye.

[15]        
Mr. Petersen did not seek immediate medical aid. Nor did he call
for an ambulance or go the hospital. He says that others took photographs of
his injury on their cellular phones but none were produced. Nor were pictures
taken of the mask that he now alleges was defective, despite cellular phones
being available in the group. He considered that with rest and sleep he would
be fine. Mr. Petersen also did not seek assistance from his brother-in-law,
Mr. LeMond, who was a captain in the fire department and who, to Mr. Petersen’s
knowledge, had first aid training.

[16]        
All of the witnesses agree that after the paintball outing, the group
then headed to the Collins residence for a BBQ. Mr. Petersen’s wife, Julie
Petersen, says that she got a call from her husband afterwards telling her that
he had been hit in the eye by a paintball. He said to her that it hurt to open
his eye.

[17]        
While at the BBQ, Mr. Collins observed his wife washing out Mr. Petersen’s
eye. Mr. LeMond recalls Mr. Petersen complaining about the shot and
that his eye was bothering him. Mr. Petersen stayed only a short period of
time and then went home. Mr. Petersen says that he drove himself home despite
having problems seeing while holding his palm over his right eye.

[18]        
When Mr. Petersen arrived home, his says that his eye was shut and
it was extremely painful. He described it as feeling like it was “full of
glass”. It was also blood-red. If he used his left eye, his right moved so he
tried to stay still and keep both eyes shut. Mr. Petersen thought that if
he just rested, it would be better in the morning. He says that he is not a
complainer. He says he slept little that night.

[19]        
Early the next morning, Sunday July 11, 2010, Mr. Petersen woke his
wife up and said that they had to go to the hospital. They went to Peace Arch
Hospital and he was given drops and some painkillers. They were told that if
the pain continued, Mr. Petersen should come back to the hospital when
someone with more expertise could look at his eye. Mr. Petersen said that
the medical staff at the hospital did not observe or remove any paint from his
eye as he had already washed it out.

[20]        
Mr. and Mrs. Petersen returned to the hospital on Monday, July
12, 2010, and Mr. Petersen was referred that day to Dr. Mae Tam, an
ophthalmologist. Dr. Tam put drops in the right eye and eventually would
insert a contact lens to protect the eye from contact with the eyelid. She told
him to come back within a few days.

[21]        
Mr. Petersen stayed off work until his next visit to Dr. Tam,
a few days later. During that time, he applied drops and a salve or cream to
his eye. He saw Dr. Tam about a week later. The contact lens was removed
and then reinserted on these visits. Mr. Petersen was off work for about a
week.

[22]        
Dr. Tam prepared an expert opinion on Mr. Petersen’s injury to
his right eye and her diagnosis and prognosis of his condition. Arising from
her examination on July 12, 2010, Dr. Tam diagnosed Mr. Petersen with
a corneal abrasion and later examinations indicated a traumatic cataract and a
slightly dilated pupil which made the eye light-sensitive.

[23]        
Dr. Tam indicated in her report that, prior to the paintballing, Mr. Petersen
had major issues with his right eye. He was born with the condition of
toxoplasmosis, which is a very large scar on his macula and central retina.
This congenital condition meant that he had poor vision in that eye whereby it could
not focus or the focus was blurry such that he used his peripheral vision
instead. Mr. Petersen adamantly claimed that his vision loss resulted from
the injury. To the contrary, Dr. Tam found that the vision loss arose substantially
from this pre-existing condition. Also contrary to Mr. Petersen’s
assertions, Dr. Tam was unable to say that his claims of exotropia
(whereby he felt his eye was “cockeyed”) resulted from the injury as opposed to
the pre-existing condition and his weak vision in the right eye.

[24]        
Dr. Tam’s prognosis was such that Mr. Petersen was at risk for
another episode of recurrent erosion and that Mr. Petersen will eventually
require right cataract extraction as the cataract progresses over time. In
terms of the recurrent erosion, Mr. Petersen was instructed to use regular
lubrication to prevent such occurrences although any recurrences were intended
to be treatable and of limited duration. It appears that there have been no
occurrences since March 2012 to the date of trial.

Negligence Claims

[25]        
The central issues concern whether Mr. Petersen has proven that the
paint from the paintballing caused the injury to his right eye and, if so,
whether that arose from the negligence of Mr. Mulrooney.

(a)      The Pleaded Claim

[26]        
On June 27, 2012, Mr. Petersen filed his notice of civil claim. In
accordance with the BC Supreme Court Civil Rules, Rule 3-1(2), he set
out the “material facts” giving rise to his claim. With respect to the mechanics
of the injury he allegedly suffered as a result of Mr. Mulrooney’s
negligence, he stated:

8.         While the Plaintiff
was participating in paintballing activities on the Premises, a paintball went
through a ventilation hole in the Mask worn by the Plaintiff, and struck the
Plaintiff directly in his right eye, resulting in personal injury to himself
(the “Incident”).

[27]        
This was the allegation that Mr. Mulrooney intended to dispute at
the time of trial. However, it was revealed to Mr. Mulrooney only at the
outset of the trial that the allegation was to be materially different. In his
opening, Mr. Petersen then stated that he alleged:

The Incident occurred when Mr. Petersen
[was] struck in the facial area with a paint-ball fired by his brother-in-law, Mr. Daniel
Lemond. Despite wearing a Sniper’z-issued paint-ball mask, paint struck Mr. Petersen
in the right eye.

[28]        
Mr. Petersen argued that this change –
from being struck by a paintball to being struck by paint – was simply one of semantics
and that Mr. Mulrooney was not taken by surprise at trial. I disagree. As
an experienced paintball player, Mr. Mulrooney was understandably
perplexed by the notion that a paintball could somehow pass through the narrow
vent holes that are located in the plastic mask area, let alone that it could
strike an eye. Even Mr. Mulrooney would agree that a paintball striking an
eye could indeed cause serious injury and that the requirement to wear a mask
was designed to prevent just such an injury.

[29]        
It is difficult enough for counsel to address new issues that arise
without adequate notice. As a lay litigant, Mr. Mulrooney was doubly
challenged but, in any event, he addressed the new allegation. Mr. Petersen
alleged that there was no prejudice in this change in the theory of the injury,
an assertion I found without merit. Mr. Mulrooney clearly was taken by
surprise. To his credit, he responded as best he could.

[30]        
In this case, the discrepancy between the plea and the allegations at
trial were raised with Mr. Petersen’s counsel by both Mr. Mulrooney
and the court at the outset and throughout the trial. In any event, no
indication was made that Mr. Petersen would seek to amend his pleadings,
even after the close of evidence, as was discussed in G.G. v. M.A., 2013
BCSC 1834. In an appropriate case, the failure to plead such a material fact
may give rise to the matter being dismissed or alternatively, delayed, if the
other party is prejudiced in responding to the allegations.

[31]        
All parties wished to proceed. Accordingly, I do not propose to dispose
of the matter based on the inaccurate pleadings alone, although this change is
indicative of the uncertainty in Mr. Petersen’s evidence.

(b)      The Trial Evidence

[32]        
I found Mr. Mulrooney to be a very credible witness. He gave his
evidence in a very calm and measured way and he did not attempt to exaggerate
any of the circumstances. In addition, his evidence was consistent with that of
Leah Reelie, a person who volunteered at Sniper’z on weekends in consideration
of her son playing for free. Consistency was also found in the evidence of Mr. Mulrooney’s
other witnesses in terms of the operations at Sniper’z.

[33]        
Mr. Mulrooney was understandably disadvantaged in terms of recalling
the actual operations at Sniper’z on July 10, 2010, by reason of only having
been first notified of the claim some years later. Nevertheless, I am fully
satisfied that Mr. Mulrooney’s general recollection of the events of that
day at Sniper’z and the operations generally of Sniper’z at that time is
accurate.

[34]        
I would observe at the outset that Mr. Petersen’s credibility and
ability to recall the events in question were sorely tested during the course
of the trial. The same can be said for the ability of his collateral witnesses,
Mr. Collins and Mr. LeMond, to accurately recall the events of that
day.

[35]        
As I have indicated above, despite Mr. Petersen’s contention that
his eye was injured while at Sniper’z, no notice of any kind was given to Mr. Mulrooney
until service of the notice of civil claim in late June or early July 2012,
some two years after the incident. I infer from the late filing of the claim
that Mr. Petersen had no intention of pressing any claim but later
reconsidered his position after the recurrence of a right eye problem arose in
March 2012. In my view, what has resulted is essentially a reconstruction,
albeit essentially a faulty one, by Mr. Petersen of the events that
occurred on July 10, 2010.

[36]        
Firstly, there was contradictory evidence about the method and timing of
payment. Mr. Petersen said in his direct testimony that he paid for the
group’s paintball outing through a barter system called “Trade Dollars”, where
no cash is received by the vendor, but other consideration is given. He also stated
that he “paid” prior to the group going out to paintball which was the reason
he was delayed in getting to the orientation session. Mr. Mulrooney
challenged this evidence and indicated that no such type of payment was ever
received by Sniper’z. When his cross examination continued the next day, Mr. Petersen’s
explanation had changed in that he then said that he had paid through a coupon
with Rush Entertainment. In addition, he contradicted his earlier testimony by
stating that his son or someone else had paid for a portion of the paintball
costs. Mr. Collins’ evidence was contrary to that of Mr. Petersen, but
consistent with that of Mr. Mulrooney, in that he said they paid after
they finished and the paintballs were counted. Mr. LeMond did not recall if
they paid before or after.

[37]        
Mr. Mulrooney disputes that any such type of payment, whether
“Trade Dollars” or this type of coupon, was accepted by Sniper’z in July 2010. Ms. Reelie,
who was working at Sniper’z that day, gave evidence that payment was only
accepted by cash or cheque. In addition, contrary to Mr. Petersen’s
evidence, both said that the costs were only paid at the end of the outing once
it was clear how much ammunition had been used. I accept the evidence of Mr. Mulrooney
and Ms. Reelie and find that Mr. Petersen was entirely mistaken in
his recollection of the method and timing of the payment.

[38]        
Secondly, the evidence about the aftermath of the shootout and Mr. Petersen’s
actions after getting to the safe zone are contradictory.

[39]        
Mr. Collins and Mr. LeMond both reported that at some point Mr. Petersen
fell to his knees and that Mr. LeMond assisted him to the safe zone. Mr. Collins
says that when Mr. Petersen got to the safe zone, he then took off his
mask. Mr. Collins observed that Mr. Petersen had been hit by a
paintball but he did not know where he had been hit. Mr. Collins observed
paint on Mr. Petersen’s face by his eye although I took his evidence to
arise from Mr. Petersen pointing to his eye area when he took off his
mask. In any event, Mr. Collins did not observe any paint in Mr. Petersen’s
eye.

[40]        
Mr. LeMond observed paint on Mr. Petersen’s mask but was
unsure whether it was from his shot or from someone else’s or even if the paint
was there before the shootout. As with Mr. Collins, he seems to have
accepted Mr. Petersen’s assertions that he had gotten paint in his eye. Mr. LeMond,
a trained firefighter, was clearly unconcerned and thought that he could simply
flush it out if that was the case.

[41]        
Mr. Petersen alleged in his direct testimony that when he removed
his mask, it was full of yellow paint on the right side. This was not observed
by anyone else. In cross examination, he contradicted himself by stating that
he did not look at the mask afterwards.

[42]        
I find as a fact that Mr. Petersen’s mask was not “full of paint”
as he alleges.

[43]        
Mr. Petersen says that he handed the mask to a male Sniper’z
employee who he said “quickly put it under the counter”. Mr. Petersen made
sure that he stated this as many times as possible during his evidence in an
attempt to emphasize the blameworthiness of the unknown Sniper’z employee.
However, this evidence was contradicted by Mr. Mulrooney and Ms. Reelie
and other regular customers at Sniper’z. They all indicated that the masks were
not kept under the counter but were rather kept hanging at the back of the
counter in full view of everyone. I find as a fact that no Sniper’z employee
acted in such a fashion.

[44]        
 Further, I did not accept Mr. Petersen’s evidence about his interactions
with the Sniper’z personnel immediately after he got to the safe zone. Mr. Petersen’s
evidence concerning his request for assistance was also confused and
contradictory through the course of his testimony.

[45]        
Mr. Petersen says that he told the unnamed employee that he had
been hit in the eye with a paintball and that he needed eye wash. This employee
is alleged to have advised him that they did not have any, which made Mr. Petersen
upset. Mr. Petersen thought that this was the same employee to whom he had
handed the mask. Mr. Petersen said that he did not speak to Mr. Mulrooney,
who he presumably knew was running the operations, about the incident because
he only wanted to get the paint out of his eye.

[46]        
Yet at his examination for discovery, Mr. Petersen said that he
talked to both Mr. Mulrooney and “another fellow” about the injury. This
evidence at least is confirmed to some extent by Mr. Collins who says he heard
Mr. Petersen ask Mr. Mulrooney for eye wash. Despite this, Mr. Collins
said that he was not aware of any objection or complaint being directed to
Sniper’z afterwards.

[47]        
Mr. Mulrooney’s evidence, which I accept, is that he was not asked
for any eye wash and that, in fact, he was not aware at all that anyone was
alleged to have suffered an eye injury that day despite him being at Sniper’z
that day. I do not accept Mr. Petersen’s evidence that he asked another
Sniper’z employee for eye wash and was refused.

[48]        
I find as a fact that Mr. Petersen did not discuss any alleged eye
injury with anyone at Sniper’z. Although not conclusive, Mr. Mulrooney’s
other witnesses who were on the field that day, Scott Haugh and Parry Magnuson,
were not aware of anyone being injured despite what Mr. Haugh called a
“tight knit” paintballing community where any injuries were broadcast quite
quickly to people on the field.

[49]        
Mr. Collins believes that Mr. LeMond gave Mr. Petersen a
bottle of water and Mr. Petersen poured it on his eye. Contrary to his
detailed evidence on other matters, Mr. Petersen inexplicably does not
recall who, if anyone, assisted him in addressing his eye or who gave him the
water bottle. Mr. Collins gave no assistance to his brother-in-law despite
his present claims that Mr. Petersen was injured. Mr. LeMond did not
have a good recollection of what happened next save that he did not consider it
a serious matter. If it had been a serious matter, I have no doubt that Mr. LeMond
would have responded to assist his brother-in-law.

[50]        
In my view, the frailty of Mr. Petersen’s evidence was made plain
during his cross examination, as even he himself realized as time went on.
Toward the end of his cross examination, in a futile attempt to emphasize or,
in my view, inflate his claims as to the force of the paint hitting his mask,
he alleged that he had suffered a cut to his nose. No one corroborated such an
injury. I do not accept this account by Mr. Petersen.

[51]        
One final point of contradiction was Mr. Petersen’s evidence about
how he travelled to the BBQ after the paintballing. At his examination for
discovery, he stated that he drove home there “in excruciating pain”, which
sounded similar to his evidence in direct about his drive from the BBQ. In
cross examination, Mr. Petersen said his son drove him to the BBQ.

[52]        
In conclusion, I give little, if any, weight to the evidence of Mr. Petersen
in terms of his description of the events on July 10, 2010. Indeed, Mr. Petersen
quite understandably says that he has no idea what happened. In my view, he
only surmises now that since he had paint on the outside of the mask, it must
have been paint that hit his eye.

[53]        
As Mr. Mulrooney argues, Mr. Petersen’s theory on the
mechanism of the injury is quite inexplicable. Mr. Mulrooney indicates
that in July 2010, the masks in use at Sniper’z were the JT brand manufactured
by an American company. Two styles of JT masks were in evidence and were similar
to the type that would have been used by Mr. Petersen while he was at Sniper’z.
Those masks are American Society for Testing and Materials (ASTM) compliant,
which is an American safety standard that would be equivalent to a Canadian
Standards Association (CSA) designation here in Canada.

[54]        
The masks are a shield of plastic with various holes in the lower part
of the face shield and at the top of the forehead area. They are vented so as
to allow air flow and prevent fogging which would obscure vision, although
importantly these vents are not large enough to permit paintballs to travel
through. The most important part of the mask is, of course, the eye goggles
which look similar to ski goggles. The goggles have a solid piece of plastic as
a lens. They also have ventilation holes at the top of the lens area inside the
mask, again to prevent fogging. The goggle frame is fitted to the mask with a
post system. As the manufacturer advises in its manual:

MASK ATTACHMENT: The JT FACEMASK is designed exclusively for
use with the JT goggle system.

Notice that the goggle and mask
are locked together and there are no gaps around the nose area.

[55]        
There is no allegation of a defect in the manufacturing of the mask worn
by Mr. Petersen.

[56]        
Mr. Petersen’s theory, such as it is, is that paint penetrated the mask
and either travelled directly through the mask or somehow ricocheted up to his
right eye. Mr. Mulrooney quite understandably scratches his head about
this theory and euphemistically argues that it must have been the most amazing
paintball shot in the world. He cannot understand the physics of how this could
have occurred. Neither can I. It is evident from looking at the masks that if a
mask is properly worn, there is a wall of plastic that would shield Mr. Petersen’s
eye area as he ran away from Mr. LeMond. Mr. Mulrooney has not, in
his decades of experience in the sport, ever seen someone struck in the eye by
a paintball or paint, save and except where that person was not wearing a mask
and goggles.

[57]        
I accept that paint may have splattered Mr. Petersen in the lower
part of the left side of his face if he was hit on the left side of his mask,
but, as a matter of common sense, I cannot see how paint could somehow have
ricocheted up to Mr. Petersen’s right eye. Further, on Mr. Petersen’s
evidence, if he was at a 90 degree angle from Mr. LeMond, it is difficult
to see how paint could have penetrated the plastic of the left side of the mask
and continued to travel to the other side of his face on a straight trajectory
in which his right eye would have been blocked by his nose. It is even more
difficult to imagine this occurring with such force as to cause the injury to
his right eye.

[58]        
Mr. Mulrooney, in the hopes of disputing Mr. Petersen’s theory
on causation, conducted his own demonstration of paintballs striking the eye
area of a paintball mask such as was worn by Mr. Petersen in July 2010. In
the video, his test subject wore such a mask and was struck by paintballs
within a short distance such as Mr. Petersen alleged was the distance
between him and Mr. LeMond. A point of distinction, however, was that this
test subject took the paintballs full on in the eye area of the mask contrary
to Mr. Petersen who said he was struck on the left side. Some of the shots
were also from a tournament grade paintball gun, which is more powerful than
the rental gun that Mr. LeMond would have used.

[59]        
In any event, the video demonstrates that the paint in the test did
penetrate through the lower face guard area and the forehead area and resulted
in paint being found on the test subject’s face, but not anywhere near the eyes.
Ryan Teodosio, an experienced paintballer, said that sometimes paint does get
on your face and that if it has sufficient force, it might feel like a scratch.
Mr. Mulrooney confirmed that spray is part of the game but is not
dangerous even if it hits the parts of the face that are somewhat exposed
through the face shield. The test subject in the video, when the mask was
removed, had absolutely no paint around his eyes. This testing by Mr. Mulrooney
confirmed his earlier view that the JT masks provide full protection for the
eyes.

[60]        
Mr. Petersen’s counsel cross examined Mr. Mulrooney on the
maintenance of the masks. The masks come with lenses. They are made of Lexan or other
polycarbonate material and are designed to be shatterproof. The manual
for the lenses indicates that if any lens is hit within 10 feet or less, the lens
should be replaced immediately even if damage is not evident. Mr. Mulrooney
indicated that he does not regularly follow that routine and replace the lens
in that event. Even so, he has never had any difficulty with the integrity of
the lenses in his masks in that he has never seen a mask lens fail. Mr. Teodosio
gave the same evidence in light of his extensive experience, including with
having been hit point blank in a JT mask. Mr. Teodosio did not see any need
to replace the lens and nothing resulted from that experience.

[61]        
In addition, Mr. Mulrooney indicated that it is his standard
routine to inspect and clean all of the masks after their use before they are
re-rented to other customers. If any masks look unsafe, including having cracks
in the lens, they are discarded. Ms. Reelie likewise said that all masks are
cleaned and inspected before they are handed out. Mr. Mulrooney’s concerns
about safety extend to the paintball operations generally, in that he even
inspects the masks of those players who bring their own as opposed to renting
them at Sniper’z.

[62]        
I have no difficulty in concluding that Mr. Mulrooney was well
aware of the risks to customers and safety concerns in respect of having a proper
mask. I am satisfied that he is a careful and safety-conscious paintballer, not
only in terms of his own play but in terms of his business operations at Sniper’z.
In particular, I am satisfied that Mr. Mulrooney is keenly aware of the
need to have safe goggles and lenses. He does not allow non-paintball
equipment, such as ski goggles, as he considers them unsafe. He personally
tested the JT lenses when he first started using them. The fact that Mr. Mulrooney
does not keep detailed records of the history of each of his masks from
purchase through maintenance (including any lens replacement), does not detract
from my conclusion that Mr. Mulrooney took particular care to see that his
masks were safe for use by his customers.

[63]        
Sniper’z regular customers, Mr. Haugh and Mr. Magnuson,
attested as to Mr. Mulrooney and Sniper’z having a strict routine in
cleaning and inspecting the masks after each use. Mr. Magnuson was himself
involved in the operations from time to time.

[64]        
In any event, I did not understand Mr. Petersen’s line of inquiry
concerning the lenses, in that Mr. Petersen did not allege, let alone
prove, that a faulty lens had allowed paint to penetrate the mask.

[65]        
Mr. Petersen also alleged that the lack of foam around the inside
of the lens area caused paint to penetrate his mask. Mr. Collins and Mr. Petersen
gave evidence about the condition of the masks that they and others were given
by the Sniper’z personnel.

[66]        
Mr. Collins described the mask handed to his future son-in law as
“ratty” in that the foam at the bottom of the mask was perforated. Mr. Collins
told him that “it looked like crap”. The son-in-law got another mask from the
Sniper’z employee.

[67]        
Mr. Petersen said that when he was given his mask, he observed very
quickly that it was badly worn in terms of the foam inside. He said that a lot
of the foam – maybe half
of it – had been picked
away or worn away. He considered asking for another mask but he knew he had to
hurry up to catch up to his group for the orientation. He thought that the
missing foam might make it uncomfortable but he did not think it would be
unsafe.

[68]        
I do not accept Mr. Petersen’s evidence concerning the lack of foam
in his mask. Again, I consider that his evidence is largely reconstructed and
intended to ex post facto support his claim here. I accept that there
may have been some wear on the foam in these masks and Mr. Mulrooney
confirmed that he would have rented out a mask with some deterioration in the
foam. I accept his evidence, however, that if there was too much wear on the
foam, he would have discarded the mask.

[69]        
In any event, the uncontradicted evidence of Mr. Mulrooney and Mr. Teodosio
is that foam is not necessary from a safety point of view. It is there for comfort.
Their evidence was that a mask without any foam is still entirely safe and
designed, if properly worn, to prevent any paint from entering the eye area. Mr. Mulrooney’s
evidence was that it was not possible for paint to go through a face shield and
travel to hit the eye even if there was a lack of foam.

[70]        
Nor is the report of Dr. Tam of any assistance on the issue of
causation. Dr. Tam states in her report that the "paintball injury
definitely caused the right corneal abrasion and subsequent recurrent erosion,
mydriasis and cataract". However, Dr. Tam was asked to, and
presumably did, adopt the following fact and assumption from plaintiff
counsel’s September 24, 2012 letter as true and accurate:

On July 10, 2010, Mr. Petersen
attended a paintball location in the Lower Mainland. While participating in
paintballing activities, Mr. Peters[e]n was struck by a paintball in the
right eye (the “Paintball Incident”). The paintball passed through a
ventilation hole in the safety mask Mr. Petersen was wearing.

[71]        
As I have indicated above, Mr. Petersen has retreated from this
allegation found in his pleadings about being struck by a paintball. Dr. Tam
does not address the issue of causation as to whether paint striking the eye
could have caused the injury or even what level of force might have been required
to cause such an injury.

[72]        
There is also no evidence from Mr. Petersen as to any other history
that he may have relayed to Dr. Tam in terms of her assessment of the
injury. Another minor point of discrepancy in Mr. Petersen’s evidence
comes from Dr. Tam’s report that states that Mr. Petersen stopped to
buy eye wash immediately after the incident. He gave no such evidence.

(c)      Conclusions and Findings

[73]        
I agree with Mr. Petersen that it has been proven that Mr. Mulrooney
is an “occupier” of the Sniper’z operations as that term is used in the Occupier’s
Liability Act, R.S.B.C. 1996, c. 337 (the “Act”). Mr. Mulrooney
would be the first one to concede that he owed a duty of care to ensure that
his customers would be reasonably safe in respect of the paintball activities
on the premises, whether at common law or arising from the Act, s. 3.

[74]        
As was stated in Wilde v. The Cambie Malone Corporation, 2008
BCSC 704 at paras. 39-40, the standard of care is not perfection, but
reasonableness:

[39]      … The test is one of
reasonableness, not perfection

[40]      A
reasonableness standard in negligence requires consideration of the probability
that an accident will happen, the potential loss that may occur, the object or
social utility of the occupier’s acts and the costs of taking reasonable
remedial steps to prevent an accident. With respect to the probability of harm,
as the potential for harm increases the duty demanded of the reasonable person
to guard against improbable events increases:  Allen M. Linden, Canadian
Tort Law, 7th ed. (Markham, Ont.:  Butterworths, 2001) at 122.

[75]        
Of particular importance here is the principle that the onus lies on Mr. Petersen
to prove that Mr. Mulrooney breached this duty of care and that this
breach caused the accident and injury. It is not sufficient to prove that an
accident occurred or even that he was injured while on the premises: Wilde
at paras. 27, 39, 43. There is no presumption of negligence simply arising
from such circumstances.

[76]        
In cases of circumstantial evidence of negligence, such as I consider is
the case here, the issue is whether, after weighing the whole of the direct and
circumstantial evidence, the plaintiff has established a prime facie
case of negligence and the inference has not been negated by the defence’s evidence:
Wilde at para. 41.

[77]        
I conclude that Mr. Petersen has failed to prove on a balance of
probabilities that Mr. Mulrooney breached his duty of care in relation to Mr. Petersen.
I have already outlined the substantial procedures employed by Sniper’z to
ensure that safe equipment was available for its customers. There is simply no
evidence that Mr. Petersen was wearing a mask that was faulty by reason of
the maintenance procedures or lack of procedures for masks at Sniper’z.

[78]        
Mr. Petersen has not, of course, proven that his right eye was
struck by a paintball, as he alleged in his pleadings. Further, I am not satisfied
that Mr. Petersen has provided sufficiently credible evidence in support
of his claim that his right eye was struck by paint somehow travelling through
his mask. The evidence at trial does not establish on a balance of
probabilities that paint from Mr. LeMond’s paintball somehow penetrated Mr. Petersen’s
mask so as to strike his right eye with sufficient force to cause the injury in
question.

[79]        
I accept that Mr. Petersen does appear to have had something in his
eye around the time of the incident. Dr. Tam’s diagnosis two days after
the paintball outing does prove that Mr. Petersen’s eye was injured. However,
per Wilde, that does not necessarily mean that it was paint arising from
a faulty mask. One does not inevitably flow from the other. Mr. Petersen’s
argues:

With reference to … the typical
rental masks, it can be seen that the foam portion of those masks would provide
a seal around the wearer’s eyes. Should significant amounts of that foam be
missing, that seal would then be rendered ineffective, and thus allow paint
spray to enter the wearer’s eyes.

[80]        
As I have stated above, I found Mr. Petersen’s evidence concerning the
foam entirely lacking in credibility and I reject his evidence. In any event,
this contention is entirely met by the uncontradicted evidence of Mr. Mulrooney
and Mr. Teodosio on the point.

[81]        
I reject Mr. Petersen’s argument that the only plausible explanation
or inference to be drawn from the facts is that paint struck his eye.

The Default Judgment

[82]        
Leaving aside the pleading issue, the allegation against the Soowahlie defendants
rested on the proposition that they were responsible as “occupiers” under the Act
in respect of the paintballing activities at Sniper’z. By reason of the default
judgment, these defendants were taken to have conceded that issue: Rule 3-8(5).
No separate allegations of negligence were claimed against the Soowahlie defendants
beyond those relating to the Sniper’z operations, as alleged at trial.

[83]        
The not entirely novel issue is, having now dismissed the claim advanced
against Mr. Mulrooney and Sniper’z by Mr. Petersen, what arises from
the default judgment Mr. Petersen obtained against the Soowahlie
defendants?

[84]        
Under Rule 3-8(11), the Court may set aside or vary any judgment granted
under Rule 3-8. The four-part test to set aside default judgment arises from
the well-known test from Miracle Feeds v. D.H. Enterprises Limited and
Giesbrecht (1979), 10 B.C.L.R. 58 (Co. Ct.) at 61:

…in order for a defendant to succeed on an application to
set aside a default judgment, he must show:

1.  That he did not wilfully or
deliberately fail to enter an appearance or file a defence to the plaintiff’s claim;

2.  That he made application to set
aside the default judgment as soon as reasonably possible after obtaining
knowledge of the default judgment, or give an explanation for any delay in the
application being brought;

3.  That he has a meritorious defence
or at least a defence worthy of investigation; and

4.  That the foregoing requirements will be established to
the satisfaction of the court through affidavit material filed by or on behalf
of the defendant.

[85]        
It remains the case that the Soowahlie defendants could have applied to
set aside the default judgment. In Howes v. Wilburn Properties Inc.,
2011 BCSC 1635 at para. 30, the court set aside a default judgment to
avoid the “mischief” of inconsistent or contradictory conclusions at the future
trial despite failure to meet the Miracle Feeds test. Similar reasoning
and a similar result is found in Wang v. Wang, 2013 BCCA 175, where the
court upheld the chambers judge’s decision to set aside a default judgment in
light of the fact that the underlying issues would be addressed later at the
trial.

[86]        
The Soowahlie defendants have not indicated any intention to respond to
the default judgment, although Mr. Mulrooney did advise the court that
they wished to rest their defence of the matter on the basis of his defence to
the merits.

[87]        
I am satisfied, however, that the court is still able, even at this
stage of the proceedings, to address the default judgment with a view to
avoiding the court coming to contradictory or inconsistent judgments.

[88]        
A case on point is Grimshaw v. Salmon Arm Motors Ltd.,
[1995] B.C.J. No. 106 (S.C.) where the court addressed similar
circumstances. Citing Clarke v. Milford (1984), 64 N.S.R. (2d) 361
(S.C.), aff’d (1987), 78 N.S.R. (2d) 337 (C.A.),
Lamperson J. concluded that no damages should be assessed against a party under
a default judgment when at trial he had been exonerated: paras. 8-11. He
found that it would be a gross injustice to award damages under the default
judgment; in addition, it would also result in contradictory conclusions.

[89]        
As in Grimshaw, I consider that there is no basis upon which damages
should be assessed against the Soowahlie defendants since to do so would result
in the court coming to contradictory conclusions in the result. Having found
that the underlying claims of Mr. Petersen against Mr. Mulrooney and
Sniper’z have not been made out on their merits, there can be no damages
assessed as against the Soowahlie defendants arising from the default judgment.
Simply put, that default judgment rested on the claims being proven against Mr. Mulrooney,
which did not occur.

Conclusion

[90]        
The action is dismissed. Subject to any party applying within 30 days
for a different costs disposition, in accordance with Rule 15-1(15)(c), costs
are granted to Mr. Mulrooney in the amount of $11,000 plus disbursements.

“Fitzpatrick J.”