IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100513

Docket:
39527

Registry: Kamloops

Between:

Dennis Legault

Plaintiff

And

Brock Shopping Centre Ltd., 644182 BC Ltd. (dba Penny Pinchers),
John Gordon Woolner and Lisa Karen Woolner (dba Penny Pinchers)

Defendants

Before: The Honourable Mr. Justice Meiklem

Reasons for Judgment

[1]            
This is a claim for personal injury damages
arising out of an outdoor slip and fall in a shopping centre. The fall occurred
on the margin of the parking lot and a covered sidewalk along the store fronts,
within an area that is clearly the responsibility of the defendant landlord to
maintain. The action was dismissed by consent against the other defendants, retail
tenants, at the outset of the trial. The shopping centre denies liability.

Review of the Evidence Relating to the Conditions and the
Plaintiff’s Fall

[2]            
Nancy Laforge, Production Supervisor of the
tenant Penny Pinchers, where she worked starting in May 1995, started work at
6:15 to 6:30 a.m. Her mother Ms. Poirier was the store manager. There had been
no changes in the structure or surfacing of the sidewalk in front of the store
during her tenure.

[3]            
On December 6, 2005, around 1:00 to 1:30 p.m.,
Ms. Laforge came into the store from a smoke break outside the rear of the
store and saw the fire department vehicles in front of the store and observed
the plaintiff lying on the sidewalk in front of the broken front window of the
Penny Pinchers store. She and another employee obtained blankets to place over
the plaintiff. She said the ambulance arrived after the fire truck and the
plaintiff was conveyed on a stretcher to the ambulance and taken away.

[4]            
Ms. Laforge noted that the parking lot was
exceedingly icy that day, which was a sunny day. Snow or ice was melting on the
eaves of the roof over the sidewalk and the dripping water was freezing on
contact with the ground. About one hour after the plaintiff was removed she
applied de-icer to the full length of the edge of the sidewalk in front of the
store and into the parking lot. She used two buckets of de-icer.

[5]            
It was the practice of the tenant to clear and
de-ice the sidewalk when necessary. She testified that the landlord’s
maintenance employee “Frenchy” and a young helper were usually at work
somewhere in the parking upon her arrival for work in the morning on a daily
basis, but she or her staff would regularly check the sidewalk before the store
opened in the morning and clean and de-ice it if necessary. They also were in
the practice of checking the condition of the sidewalk every “couple of hours”
when the business of the store allowed. The tenant store used approximately half
a bucket of de-icer daily. After the plaintiff’s removal and her de-icing, she
placed what she believed was the second call of the day at 11:00 to 11:30 to
the landlord to attend to de-ice the parking lot, but she said they did not
respond. This was the first time she had ever had to do that and she was
unaware of previous calls by her mother, the store manager. She said that her
mother had called the defendant landlord between 8:00 to 8:30 a.m. that morning
to get someone to attend because the parking lot was very icy.

[6]            
Ms. Laforge said that it was common for the
front of vehicles parked nose-first into the store front to overhang the margin
of the parking lot and the sidewalk, and for water from melting snow or ice
from the vehicles to drip onto the sidewalk to some extent. It was also common
for icicles to form on the eaves directly above the asphalt parking lot near
the edge of the sidewalk. She said that on the day of the plaintiff’s fall, the
ice was all on the asphalt, but there was hard-packed snow on the sidewalk to
the extent of approximately one foot.

[7]            
Ms. Laforge had no recollection as to whether
the laces of the plaintiff’s footwear, a pair of black running shoes, were tied
or untied.

Lisa Dooley

[8]            
Ms. Dooley was sitting in a restaurant across
the parking lot from the front of the Penny Pinchers store. She was sitting on
a swivel stool and facing out toward the parking lot. She said that she
observed the plaintiff drive up and park in front of the restaurant and he and
his son get out of the truck. She did not observe who got out first, but it is
clear from other evidence that the plaintiff’s son got out well before the
plaintiff and he was across the parking lot and about to enter Penny Pinchers
when his father got out of the truck. In any event, Ms. Dooley said she saw Mr.
Legault slip as he stepped on the edge of the sidewalk and she saw him
unsuccessfully try to regain his balance and then fall into the store front
window. Her male companion phoned 911, and after the paramedics arrived she and
her companion walked across to the area of the slip and fall and she said there
was ice on the edge of the sidewalk but not on the sidewalk. When asked to mark
the location of the ice on a photograph of the area taken about one week later,
she made a mark partly on the sidewalk and said that the ice was all along on
both sides of the “join” or margin of the asphalt and the sidewalk. She said
that both she and her male companion slipped as they walked across the parking
lot, but they did not fall.

[9]            
Ms. Dooley used to live in very close proximity
to this shopping centre and said there was always ice on that area, every year,
until they salted or sanded it. She said there was a lot more ice present on
December 6, 2005 than is shown in the photographs in evidence that were taken
one week later.

[10]        
Ms. Dooley did not make any observations of the
plaintiff’s feet or footwear. She acknowledged that her memory is bad and that
she was on anti-depressant medication while testifying, as she has been for the
past couple of years. She said, however, that some things are etched in her
mind. She acknowledged that she had discussed her recollections with the person
who was her companion on the day of the incident.

Dennis Fayers

[11]        
Mr. Fayers’ testimony was received in the form
of a videotaped deposition. Mr. Fayers is a Captain with the Kamloops fire
department and he attended the scene of the slip and fall. His observation was
that there was a build-up of ice some 4-5 inches thick along the parking lot on
the edge of the sidewalk, but not on the sidewalk itself. He described the
amount of ice as more than shown in the photographs in evidence that were taken
one week later, and that there was enough ice that you “had to be careful when
you stepped over it.” He said that photographs numbered 8, 9 and 10 [these were
taken one week following the plaintiff’s slip and fall] showed best where the
ice was, although I note that these do show some ice on the sidewalk itself, so
that observation contradicts his original recollection. Mr. Fayers also
confirmed that he saw icicles as depicted in the subsequent photographs dripping
onto the ground on the day of the plaintiff’s slip and fall.

Dennis Legault Jr.

[12]        
The plaintiff’s son, who was 19 at the time of
trial and therefore approximately 15 at the time of the incident, testified
that he and the plaintiff dropped off donations at the rear of Penny Pinchers
and drove around to the front parking lot and parked in front of Yaki Joe’s
restaurant, where Dennis Jr. got out of the vehicle and walked across the
parking lot to enter the front door of Penny Pinchers. He found the footing
slippery, but did not fall. Just before he got to the front door, his father
called and asked him to wait for him. As he waited, he watched his father walk
across the parking lot on the same route he had taken and approach the sidewalk
on the opposite side of a pickup angle-parked nose-in to the sidewalk. Dennis
Legault Jr. said that he did not think about warning his father about the
condition of the parking lot.

[13]        
As he passed the front left corner of the
pickup, the plaintiff slipped with both feet, was unable to regain his balance,
and fell forward at a 45 degree angle into the store-front window and the short
portion of the wall below that window. Dennis Jr. saw the plaintiff’s feet
shuffling, “almost like pedalling”, as he described them, and he saw the plaintiff
try to reach back to grab a concrete pillar that he had passed, but it was too
far away. Dennis Jr. marked a photograph at the location where the plaintiff
slipped, which is on the concrete sidewalk rather than the asphalt parking lot.

[14]        
Dennis Legault Jr. said that one of his father’s
boots came off in the slip and fall and was on the sidewalk beside his father
and he untied the laces on that boot and replaced it on his father’s foot. He
said that he thought it was his left foot and he had seen the boot come off as
that foot slipped back and then hit dry pavement. He said the paramedics
attended to his father and helped him to his feet and he walked to the
ambulance.

Dennis Legault, the plaintiff

[15]        
The plaintiff is a very large man, aged 53 at
time of trial. He said that he weighed 350-380 pounds at the time of the
accident and had a 54 inch waist. His wife believed he weighed 380 pounds. He
was considerably larger at the time of the trial when he said he weighed 444
pounds and that his waist measurement was 60 inches. On the day in question, he
was wearing triple EEE-width ankle-high hiker style boots with the laces tied
loosely enough for him to slip into his boots without bending down to pull them
on. This was his habitual manner of wearing those boots. He and his son
described them as ice boots, and there was no suggestion that they were
inappropriate footwear for the winter conditions in Kamloops in terms of tread
or design, although I note the tread design is quite knobby and aggressive,
seemingly more designed to provide traction in snow than on ice, particularly
wet ice.

[16]        
The plaintiff said he proceeded across the
parking lot “gingerly” because it was slippery on account of crushed ice and
snow. As he passed between the parked vehicles he kept steadying himself by
sliding his right hand along a parked pickup truck. As he stepped onto the
sidewalk in front of the pickup, thinking, “oh it is safe because it is
covered”, one foot slipped and then the other and he stumbled forward. He said
that the concrete pulled his boot “right off”. He said that he wore the same
pair of boots for three winters after this accident and the laces have never
been undone in all that time. Mr. Legault acknowledged that he was looking at
his son through the windows of the cab of the pickup truck he was walking
beside and was not looking at the ground in front of himself. He did not agree
that he had made an unsuccessful grab at the nearby concrete post as his son
testified to. He said he did a couple of “stutter steps”, lost his boot and
stumbled forward. He said it was the solid traction of the toe of the boot on
the concrete that caused the boot to come off.

Barb Legault

[17]        
The plaintiff’s wife attended the scene of the
slip and fall shortly after the plaintiff was taken to hospital. She was
present when Ms. Poirier, the manager of Penny Pinchers, and that store’s owner
were pointing to and discussing icicles dripping water onto the sidewalk which
froze on contact with the sidewalk. She is the person who took some of the
photographs entered as exhibits about one week later, and she described the
amount of ice on the day of the accident as “way larger” than that shown in the
photographs.

Margaret Poirier

[18]        
She was the Penny Pinchers store supervisor. She
started work at 6:15 a.m. on the day of the accident. She checked for ice on
the sidewalk when she came to work and saw none. She spent most of her time in
the office portion of the store and she did not see the accident, but when her
daughter and other staff told her someone had fallen, she went outside and saw
the plaintiff in the fallen position. She says that he was wearing dark
coloured running shoes that were not laced up. She said that she saw glass on
the sidewalk but no ice. She specifically looked for ice because there had in years
past been a claim made by someone who had slipped in the parking lot. She
acknowledged that she told her daughter Nancy to apply de-icer to the parking
lot because she thought it was necessary, but she said she was certain there
was no ice on the sidewalk. She telephoned the landlord’s office about the icy
parking lot about 8-8:30 a.m. She did not remember a conversation with the
store owner about dripping icicles. She said that the Penny Pinchers store
owner had never told her to look after the sidewalk, nor had he told her not to
do so because sidewalk and parking lot maintenance was the responsibility of
the shopping centre owner.

Leona Blower

[19]        
The defendant called this cashier employee of
Penny Pinchers, who had returned from a trip to the bank in her car. As she was
walking back into the store, after parking on the opposite side of the parking
lot, she saw a crowd of people around the fallen Mr. Legault, and she stayed
with him until the ambulance arrived. She did not notice or remember whether
there was ice on the sidewalk but she did note Mr. Legault was missing his left
shoe, and she saw it on the sidewalk in front of and to the left of a pickup
truck, with the laces completely undone. She actually thought at first that the
truck had hit him and propelled him into the store window. She did not see
anyone put the shoe back on the plaintiff.

Ivan Jakic

[20]        
Mr. Jakic was the owner of the corporate
defendant at the time of the plaintiff’s slip and fall accident, and had owned
it for about 25 years. He sold the shopping centre about 4 years prior to the
trial. He testified about the daily maintenance of the parking lot that was
performed by a salaried part-time employee, Frenchy Talbot. Maintenance was
performed every morning and included, picking up trash, sweeping the storefront
sidewalks, clearing snow and sanding or salting if necessary. This maintenance
took his employee about 4 hours daily in the summer months, starting in the
early morning. It took longer in the winter, sometimes until 1 p.m. or 2 p.m. There
was no written checklist list of tasks for his employee Mr. Talbot, nor a
regular scheduled time for inspections of various areas of the parking lot and
sidewalks. Mr. Talbot had been doing the maintenance for 10 years, did an
excellent job, and he did not require him to keep a log of his maintenance
tasks completed. Mr. Jakic generally attended the shopping centre twice a day
himself, although he said he “maybe” missed a day or two per week.

[21]        
He did not recall if he had attended the
shopping centre in the morning of the plaintiff’s fall, but he recalled
attending in the afternoon, after the broken glass was cleaned up. Having been
told of the fall, he looked for snow and ice on the sidewalk and saw none. He
did not think there was anything he needed to ask Mr. Talbot to do.

[22]        
On cross-examination, he acknowledged there were
no eaves troughs and he knew that snow melt would accumulate on the sidewalk
and the margin of the sidewalk and the parking lot. Answering the court’s
questions he said the reason no eaves troughs had been installed was that they
would represent a hazard because of ice accumulation in them and they would be
readily damaged by slipping ice or snow sliding down the metal roof. He
considered that the slope of the parking lot would disperse the run-off from
melting on the roof.

Frenchy Talbot

[23]        
Mr. Talbot testified that on the day in question
he started his parking lot and sidewalk maintenance at 5 a.m. and finished at
10 a.m. as per his usual winter hours. His job was to sweep or scrape the
sidewalks and de-ice with salt if necessary, and he did not leave unless it was
done. On the day of the accident he was finished at 10 a.m. and was not asked
to return and did not return. He said he did not hear about it until a week
later.

[24]        
When necessary, Mr. Talbot used a 1×4 board as a
tool to bring down snow from the edge of the roof over the sidewalk. He then
scraped it into the middle of the parking lot where the owner’s hired snow
removers would clear it away with the rest of the parking lot snow.

[25]        
Mr. Talbot testified that he was paid on an
hourly basis, rather than on a monthly salary as Mr. Jakic had testified, but I
assume neither side considered that discrepancy significant, because it was not
pursued to the point of resolution.

John Woolner

[26]        
Mr. Woolner was an owner of Penny Pinchers, who
operated that business from 1994 to 2008. He arrived at the shopping centre
about 8:30 a.m. Although he did not specifically recall seeing Mr. Talbot that
morning, he confirmed that Mr. Talbot was present to do his maintenance chores
every day of the week except Sundays and usually started at 5:30 to 6:00 a.m
and worked until about 10:00 a.m. At the time of the plaintiff’s fall, Mr.
Woolner was away from the premises on a pick up, but Mrs. Poirier called him on
his cell phone and he returned to find the scene taped off, but the plaintiff
and the ambulance gone. He telephoned the landlord and he cleaned up the broken
glass. He said that he did not see any ice on the sidewalk and it was not
slippery, but he acknowledged that his employees had told him that the
plaintiff had slipped on ice.

Written report of Forensic Dynamics Inc.

[27]        
This report was written by Tim Leggett,
Professional Engineer, who was not a witness at trial. The weather data
received from Environment Canada was reviewed as follows:

According to the
Environment Canada daily report of Kamloops Airport, it was close to the freeze
point for the last several days of November. There was 6 centimetres of snow on
November 29, 2005. The first week of December was quite cool, with the
exception of December 5, 2005, where the high temperature was above the freeze
point. There was 0.4 centimetres of snow received at the Kamloops Airport on
December 4, 2005, and an additional 2.4 centimetres on December 1, 2005.

[28]        
Mr. Leggett measured the concrete sidewalk as
8.5 feet in width and noted a slight slope toward the building of .3 to .8
degrees. He also noted a shallow depression as a result of concrete and asphalt
sinking in one area, an example of what is referred to in the industry as a
“birdbath” which was problematic because it collected water which could become
ice in freezing conditions. In the analysis portion of his report, Mr. Leggett
included the following comments:

5.1 Building Design

It was noted that the extent of the concrete
sidewalk was essentially at the same level as the asphalt parking lot. This is
unfortunate. Typically, sidewalks around a facility such as the Brock Shopping
Centre are raised 15 centimetres from the parking lot level. In such a fashion,
any snow, rain or ice that is present in the parking lot area will not be able
to find its way to the sidewalk region as has clearly occurred in this
circumstance. The raised curb will also assist in the prevention of blowing
snow from the parking lot regions reaching the sidewalk area where, once again,
the moisture can become problematic. In this writer’s opinion, the sidewalk
should have properly sloped away from the building, and there should have been
a vertical delineation between the asphalt parking lot and the concrete
sidewalk. Similarly, there were several locations where sunken depressions
allowed for the holding of water. Referred to in the industry as “birdbaths”,
these are problematic in that they allow moisture to accumulate which can later
allow an icy layer to form. In short, it is imperative that any facility have
proper drainage so that any and all moisture that is received does not
accumulate in an area where it can be expected pedestrians will tend to be
located.

The building design included a covered
walkway for patrons using the shopping centre. This, of course, is primarily
for the pleasure of customers (in order to shield them from inclement weather
such as rain, sleet or snow, and also to provide shade in summer months). Equally
of importance, from an engineering perspective, a covered pathway reduces and
potentially prevents moisture from falling on the travelled surface. It is
known that any moisture will reduce the coefficient of friction of a surface. By
keeping a pathway clear and dry, a designer ensures that the best friction is
available for the travelling public. This is particularly important in winter
conditions such as those which often occur in the Kamloops area, as any
moisture will freeze, resulting in an icy layer. A generally moderate climate,
ice which forms in this region around the freeze point, is often lubricated as
a result of freeze/thaw cycles, and this will, in fact, produce a coefficient
of friction that is at the lowest end of any naturally occurring phenomenon as
a result of the hydrodynamic lubrication of moisture on ice.

At this facility, there were no gutters or
down spouts present. It is imperative that any water shed from an overhanging
surface such as the covered pathway be removed from the region (and properly
disposed of through the drainage network) so that this moisture is unavailable
to later interfere with pedestrian passageway.

For an icy layer on a travelled surface to
develop, two equally important but distinct factors must be present. Firstly,
there must be suitable moisture available to make ice, and secondly, the
surface temperature must be below the freeze point. A review of the
meteorological data confirms that the maximum temperature during the first week
of December, 2005 was, in fact, quite cool, with the exception of December 5,
2005. Minimum temperature were as low as -15ºC on December 4, 2005, which would have produced a very cold
sub-surface temperature. If moisture is present and the surface is below
freezing, it is a certainty that ice will form.

In order to prevent this from occurring, one
must remove the moisture in the region (i.e., through the use of eaves troughs,
or one must install a heat melt system to prevent the sidewalk from reaching
temperatures below freezing).

A review of the photographs taken one week
post-accident, and also more recently, confirms that water is removed from the
covered pathway (as a result of its slope), and it is deposited at the
periphery of the concrete pathway where it abuts the asphalt parking lot. Because
the sidewalk has either sunk, or was incorrectly constructed, this moisture
will typically migrate toward the building.

As a result of a review of the
meteorological data, which confirms 6 centimetres of snow was received on
November 29, 2005, and 2.4 centimetres of snow was available on December 1,
2005, and finally a skim of snow was available on December 4, 2005, there was
moisture, which clearly had accumulated in the region, likely on the galvanized
overhang. On the day prior to the incident, the temperature was close to
freezing, and given the southern exposure of the roof, which would likely have
permitted any snow which had accumulated on the overhang to simply melt and
tumble toward its periphery (i.e., to the outer extent of the sidewalk, defined
as the transition between the concrete sidewalk and the asphalt parking lot). Since
the minimum temperature for the night prior to December 6, 2005 was likely
about -10ºC, this material
which had previously thawed, would then have re-froze, creating an icy surface
in the region. It is not possible to determine precisely the extent of the icy
region. (Note, the photographs referred to previously were taken approximately
one week after the incident, and suggests that the width of the ice was approximately
less than 1 metre). In this regard, it is the writer’s opinion an eaves trough
system should have been in place to prevent moisture from accumulating (and
then later re-freezing) on an area which it is known patrons would be typically
in the habit of using.

5.2       Winter Maintenance

In the field of winter operations, it is, of
course, always preferable that the travelled surface (either a road system,
parking lot, or indeed, a sidewalk) never have a diminished surface friction. This
is accomplished by preventing moisture from being available, heating the
surface, or through the use of anti-icing chemicals which will depress the
freeze point of water and prevent the formation of ice. If any anti-icing agent
had been sprayed on the sidewalk at the location of the incident (or indeed,
any solid ice melt chemical), the freeze point of the liquid solution would
have been lowered, such that it likely would not have frozen at the
temperatures observed at the Kamloops Airport on the date of the incident.

Once a travelled surface becomes diminished
with respect to its friction coefficient, a maintenance technician must then
become “reactive”. That is, once ice has formed, attempts must be made to
rectify the ice and return the surface friction to a more reasonable level. Photographs
taken at the incident location one week after the fact confirm that a solid,
white de-icing chemical was used. (Note, this would typically be a chemical
such as common road salt). The staining available in the photographs taken one
week after the fact, confirms that, indeed, this was the practise at this
facility. Unfortunately, this practise appears to have been completed in a
reactive mode in order to alleviate a diminished surface, as opposed to a
“proactive” approach, which would involve the concept of preventing a
diminished surface friction coefficient.

As stated
previously, it is always preferable that an anti-icing treatment take place to
prevent ice from forming, however, if de-icing treatments are undertaken (i.e.,
in a reactive mode), the use of chemicals will typically allow the ice to melt,
causing a liquid/salt solution to form. In areas, such as Kamloops, which enjoy
a lower humidity, this will allow the water component of the solution to
evaporate which will allow a solid salt crystal to remain. (This, in fact, is
the staining that we see in the photographs taken post-impact). Importantly,
this solid salt that remains will be in place, and will be effective for the
next event, should it be required. In such a fashion, if a chemical such as
common salt had been applied before the snow melt from the roof had taken
place, or even if it had been used after the ice had formed as a result of the
re-freeze, it is expected the parking lot would likely have been bare and dry
as opposed to icy, when Mr. Legault intended to enter the Penny Pinchers
facility.

Factual Findings Concerning the Ground Conditions and the
Plaintiff’s Fall

[29]        
Notwithstanding the conflict in the evidence as
to what extent, if any, there was ice on the sidewalk proper, as opposed to the
parking lot contiguous to the sidewalk, I am satisfied on the preponderance of
the evidence that, at the time of the plaintiff’s accident, there was a
build-up of ice on or near the margin of the sidewalk and parking lot that
played a causative role in the plaintiff’s fall.

[30]        
I accept Mr. Leggett’s analysis of the likely
origin of the ice based on the weather data, which I find to be sound and
consistent with much of the other evidence. I also agree with his observations
regarding the design of the building and the sidewalk elevation, although I
suggest it is common sense and common knowledge that gutters and downspouts do
not provide a complete answer to water removal in an interior climate in the
winter.

[31]        
I find that Mr. Talbot did attend and perform
his regular sidewalk maintenance in the early morning hours of December 6,
2005, and at the time of his departure around 10:00 a.m. the concrete sidewalk
proper was probably clear of ice. The adjoining parking lot, which was not Mr.
Talbot’s responsibility, was probably not clear of ice, and as the temperature
rose during the day there was dripping onto a colder ground surface, and ice
formed at the margin of the sidewalk and the parking lot which did overlap the
sidewalk to some small extent. The margin was nearly directly under the eaves
where the dripping from melting occurred and ice formed as the dripping water
hit the ground.

[32]        
I find that the plaintiff’s loss of his left
boot as his slipping foot made contact with the dry sidewalk played a causative
role in his falling forward. The loss of his boot was the result of his
habitual permanent partial tying of the laces so that he could readily slip his
feet into his boots without bending over to pull them on.

[33]        
I find that the plaintiff was not observing the
ground conditions beneath his feet as he approached the sidewalk. Rather, he
was looking at his son standing in front of the door to Penny Pinchers and
wrongly assumed that the very slippery condition of the parking lot he had
“gingerly” traversed would end when he stepped past the vehicle he was sliding
his hands along to balance himself and onto the covered sidewalk.

Conclusion on Liability

[34]        
The plaintiff’s claim is under the Occupiers
Liability Act [RSBC 1996] c. 337, (the Act), s. 3(1) and 3(2) of
which reads as follows:

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.

[35]        
There is no dispute that the defendant, Brock
Shopping Centre Ltd., was the owner and occupier of the subject premises and
owed the duty of care and the standard of care set out in the Act.

[36]        
The test is an objective one as to whether, in
all of the circumstances of this case, the defendant took that care which was
reasonable to see that a person entering on the premises would be reasonably
safe. The circumstances in this case include the condition, design and layout
of the premises, the weather conditions, the maintenance system of the
defendant, the degree of public access to the premises, and the foreseeability
of danger to users. The occupier is not an insurer, and will not be liable for
all accidents, provided that a reasonable system of inspection and remedial
maintenance commensurate with the risks is in place and being followed.

[37]        
Mr. Jakic provided a reasonable explanation as
to why he thought eaves troughs were not necessary or likely to make the
premises safer at the subject location, but I find that the absence of eaves
troughs made other water removal procedures necessary, and heightened the need
for frequent inspection. In my view, taking into account the design faults of
the premises that contributed to the ice build-up at the margin of the concrete
and the asphalt, the daily morning attendance of Mr. Talbot was not reasonably
commensurate with the risk to users on days where the melting and freezing
conditions were similar to those present on December 6, 2005. Additional
twice-daily inspections such as those Mr. Jakic said he carried out may well
have been adequate to meet the standard of care, if a timely and scheduled
frequency was adhered to, and particularly if supplemented by timely response
to notice of sudden icy conditions from the tenant, but I find that Mr. Jakic
did not make regular scheduled inspections, and, on the date of the plaintiff’s
fall, the defendant owner failed to respond to two calls from the tenant to
address the condition of the parking lot. Responding to one of these calls
would likely have apprised the owner of the melting and freezing conditions
that also affected the sidewalk margin area.

[38]        
I conclude that the defendant owner failed to
meet the required standard of care.

[39]        
Users of premises are required to exercise
reasonable care for their own safety. I conclude that the plaintiff did not
exercise reasonable care for his own safety given all the circumstances known
to him. This case is distinguishable from the case of Plakholm v. Victoria
(City) 2009 BCSC 1039 cited by the plaintiff, where the court held on the
facts of the case that not looking down was not a failure to take reasonable
care. Mr Legault was a large obese man, walking with his boots loosely and
insecurely half-tied. Having crossed an extremely icy parking lot “gingerly”
and holding on to the parked vehicle for balance as he stepped onto the
same-level sidewalk he was familiar with, (he said he had been there “dozens
and dozens of times”) he maintained visual contact with his 15 year-old son
standing off to his right and forward, even to the extent of watching him
through the windows of the vehicle he was walking past for reasons unstated,
but clearly not of necessity. He did not pay any attention to the ground at his
feet, and I conclude that in the circumstances this failure to keep a lookout
and the failure to properly secure his footwear were failures to take reasonable
care for his own safety. These failures were major contributing causes of him
falling forward into the wall and window of the Penny Pinchers store front,
rather than falling straight down or backwards where he slipped on the icy
build-up.

[40]        
I do not find it possible on these findings to
attribute a greater degree of fault to one party or the other. I think that
this is an appropriate case to apply s. 1(2) of the Negligence Act [RSBC
1996] c. 333, which requires the court to apportion liability equally, and I do
so.

The Nature of the Plaintiff’s Injuries

[41]        
The plaintiff’s most significant injury was a
comminuted fracture of his left humerus, and he received lacerations to a lip,
his left arm, right hand and right knee. The following portion of a May 12,
2009 medical-legal letter from orthopaedic surgeon Dr. Laura Zeznik best
summarizes the plaintiff’s physical injuries and the course of his treatment:

I initially assessed Mr. Legault December 7,
2005, while on call for orthopaedic surgery at Royal Inland Hospital. The day
prior, Mr. Legault slipped and fell through a plate glass window at a shopping
mall. He sustained a number of small lacerations to his upper extremities and
his lip which were sutured in the emergency department. The main impact occurred
on his left shoulder and he was diagnosed with a proximal humerus fracture.

Mr. Legault’s past medical history was
remarkable for obesity and insulin dependent diabetes mellitus. He reported a
past history of significant infections and a tendency to delayed wound healing,
complications which are not uncommon in diabetic patients.

Radiographs and CT scan performed December
6, 2005, revealed a comminuted intraarticular fracture of the proximal humerus
with slight superior and posterior displacement of the greater tuberosity.

Considering his mild to moderate fracture
displacement, the possibility of surgical fixation to stabilize the region was
raised. However with his significant soft tissue bulk and increased risk of
infection, Mr. Legault and I agreed that surgery may not be in his best
interests. It was therefore decided to proceed with conservative management
including a sling and analgesics for comfort, followed by initiation of gentle
range of motion exercises under the care of a physiotherapist. I saw Mr.
Legault regularly over the next several weeks to monitor his progress and
ensure that his fracture was healing satisfactorily. As far as I am aware, he
adhered to all treatment guidelines and completed his recommended
rehabilitation program.

On most recent assessment April 30, 2009,
Mr. Legault reported ongoing difficulties with his left shoulder. He described
progressive pain in the region including pain at rest and pain which can waken
him from sleep at night. He describes cold intolerance. He is unable to
tolerate any vibration through the left upper extremity and therefore cannot
ride his motorcycle, drive a tractor, or use any vibrating tools without any
significant discomfort. He reported reasonable flexibility in the shoulder. He
has been on a fentanyl transdermal patch since the time of his injury and
continues to require this narcotic medication. On examination, he remains obese
and has evidence of diminished soft tissue bulk around the left shoulder
consistent with disuse atrophy. His range of motion is mild to moderately
diminished in this shoulder and there is pain throughout the range of motion.
Examination of the remainder of the upper extremity and distal neurovascular
examination was within normal limits.

Recent radiographs of the left shoulder were
performed April 28, 2009, and show a left healed proximal humerus fracture.
Since the last radiographic assessment in 2006, there has been a development of
mild to moderate post traumatic osteoarthritis in the left glenohumeral joint
with joint space narrowing and osteophyte formation.

Mr. Legault has
developed post traumatic arthritis of his left shoulder most probably secondary
to a fracture sustained December 6, 2005. Although the symptoms of pain and
stiffness due to arthritis may plateau, it is possible that he may experience
progressive symptoms in the shoulder as time passes. As arthritis is an
irreversible condition, Mr. Legault has a permanent impairment. He is likely to
experience increased symptoms with repetitive activity, overhead activity, and
activities which load the shoulder joint including use of vibratory tools or
machinery, or heavy lifting. Surgical options for shoulder arthritis include
arthrpacopy and debridement or hemi or total arthroplasty. The results of these
procedures for post traumatic arthritis (as compared to degenerative
osteoarthritis or rheumatoid arthritis, for example) are less favorable. In
this particular patient, his complication rate would be significantly increased
due to his size and longstanding diabetes.

[42]        
Mr. Legault’s family physician, Dr. Leung,
provided the following information in a letter dated June 19, 2007:

Dennis has been my patient since February
2000. He is a Type 2 Diabetic with high blood pressure and is morbidly obese,
over 350 pounds.

On December 6, 2005, he fell down and had an
injury to his left shoulder and elbow. At that time he was transferred to the
Royal Inland Hospital Emergency Department. Dr. Williamson examined him and
treated the multiple lacerations; an x-ray showed comminuted fracture of the
left humerus. Dr. Zeznik, orthopaedic surgeon, was consulted and a plica
immobilization was applied. The decision was made not to surgically correct.

I saw Dennis, the first time, on the 15^th
December 2005. He had not been sleeping for over 10 days. He had severe pain
and was extremely anxious. There was no neurological deficit. That means no
nerve being impinge. I adjusted his medication and started him on a Duragesic
and Lyrica. He started to have some sleep and reduction of his pain, but his
physical ability still remained unchanged, meaning his left arm was still
almost nonfunctional. Physical therapy and increased range of movement was
suggested. Dr. Zeznik has been following him up periodically and no surgical
procedure was to be done. Repeat x-rays showed the same comminuted fracture of
the humeral head, no position changed.

Dennis had been quite physically active
before the injury. Unfortunately, after the accident he can no longer do any
manual work, even though he has increased his range of movement of his left arm.
The left arm is not able to do any meaningful task like lifting, pushing or
turning. His major depression is definitely not any better. I am neither a
physiotherapist nor an occupational therapist and I cannot tell you how much
function he can retain.

He has diabetes, major depression,
hypertension, and obesity, definitely getting worst since the accident. He
needs constant analgesics for pain and has complained a lot in my office since
the accident.

According to the orthopaedic surgeon, no
further surgical procedure is planned. With his size and complex medical
problems the chance of him going back to work is almost impossible. I
anticipate he is now completely disabled and this may last for as long as he
lives. That is my opinion only. Again [an] occupational therapist and
reapplication therapist will give you [a] more accurate prediction.

His medication
right now includes Diamicron 90 mg, Metformin 1000 mg Bid, Lipidil 200 mg,
Flunarizine 10 mg, Actos 45 mg, Paxil 20 mg, Monopril 10 mg, Duragesic 75U/Hr
patch, and Lyrical 50 mg Bid.

[43]        
Mr. Legault was assessed in August 2007 and
again in June 2009 at his counsel’s request, by Dr. S.E. Martin, a consulting
physician specializing in occupational and health medicine. In August 2007, Dr.
Martin diagnosed chronic pain syndrome secondary to the complex left shoulder
injury and also diagnosed reactive depression. He was of the opinion that Mr.
Legault had reached the point of maximum medical improvement and his left
shoulder was permanently impaired functionally and there was measurable
impairment of his right knee and left hand, which exhibited decreased sensation
in the palm. In June 2009, Dr. Martin’s diagnoses were somewhat modified and
expanded. He diagnosed “pain disorder associated with both psychological
factors and a medical condition”, and he added a diagnosis of contusion injury
to the right patella-femoral articulation with laceration to the anterior right
knee, and triggering of the left hand thumb and ring finger, as well as
mentioning the co-morbid conditions of diabetes, hypertension and morbid
obesity. The discussion portion of Dr. Martin’s June 1, 2009 opinion letter
includes his explanation in respect of the knee and left hand diagnoses as well
as a comment on the developing arthritis in the left shoulder:

Discussion: Mr. Legault is now three and one-half years post injury.

The main problem issue is the residual
disability in his left shoulder.

As a result of the left shoulder fracture,
Mr. Legault has now developed post-traumatic arthritis of his left shoulder
(see Dr. Zeznik’s report of May 12, 2009). The osteoarthritis manifests in
persistent pain and stiffness in the shoulder. Dr. Zeznik has provided an
opinion that it may progress as the development of osteoarthritis proceeds. This
reconciles with my experience of post-traumatic osteoarthritis.

Thus, he will likely have ongoing
difficulties and perhaps need for further intervention in the future.

Mr. Legault has triggering in his left hand
(thumb, ring finger) possibly related to the laceration sustained in the palm
of his hand. He should be seen by a hand surgeon for expert opinion.

Lastly, he has
some patello-femoral articulation pain. Mr. Legault sustained a laceration to
the anterior right knee during the fall. It is more likely [that] when this
occurred he had compression of the knee cap (patella) against the femur
resulting in contusion injury to the cartilage.

[44]        
Dr. Martin’s June 2009 prognosis was expressed
as follows:

Prognosis: As Dr. Zeznik has identified, it is unlikely Mr. Legault will
recover. It is more likely than not he will have progressive symptoms with the
evolvement of the osteoarthritis of the left shoulder. I note in my previous
report I felt that he may have difficulty having the sensation return to the
palm of his hand, but apparently most of it returned with the exception of
around the scar area.

[45]        
Plaintiff’s counsel referred the plaintiff to
Dr. John Lawrence for a psychological assessment in April 2008. Dr. Lawrence
provided his opinion in a letter dated September 8, 2008, diagnosing major
depressive disorder, adjustment disorder and pain disorder. Dr. Lawrence’s
report mentions psychological trauma from the 2003 death of a brother following
a “mugging”, but Mr. Legault testified that the origin of his depression,
treated by Paxil, was a 2002 dispute with neighbours, then the 2003 death of
his brother. Dr. Leung’s report suggests that Mr. Legault’s major depression
has not improved since the accident, but Mr. Legault testified that he is now
on a weaker anti-depressant.

Assessment of Non-pecuniary Damages

[46]        
I must say that my assessment of the true extent
of Mr. Legault’s pain and suffering and loss of enjoyment of life is influenced
by my observations in respect of his testimonial demeanour. He began his
testimony at 10 a.m. and testified for approximately 90 minutes prior to the
morning break, without exhibiting any pain behaviours whatever. His lifted his
left hand without difficulty to demonstrate where the abrasion to his left hand
occurred and was quite mobile as he moved his body to demonstrate the mechanism
of how he stepped and stumbled forward. Yet immediately after the morning
recess he began sighing frequently and complaining of pain; at one point
saying, ‘Oh, I’ve got to sit down.” 

[47]        
I found Mr. Legault embellished his narrative in
some particulars, presumably for dramatic effect. For example, his description
of his fall ended with him lying “in a pool of my own blood”, and “a girl [Ms.
Laforge] came out like an angel”.

[48]        
I found that a significant portion of Mr.
Legault’s examination in chief consisted of him responding to undisguised
leading questions, sometimes prefaced with the phrase “Can the court take it
that….”. This, of course, diminished the reliability of some of his
testimony.

[49]        
Notwithstanding these difficulties, I am
satisfied that Mr. Legault has suffered a good deal of pain and will continue
to do so indefinitely, due to the fact that his osteoarthritis is irreversible.
He appears to be destined to sleep on the couch indefinitely because it is only
on the couch that he has been able to find a position, ironically on his left
side, where he can support his head and put pressure on the left shoulder to
relieve the pain that would otherwise prevent him from sleeping.

[50]        
Mr. Legault may have exaggerated to some extent
the diminution in his mobility and physical activities that is attributable to
his arm and shoulder injury, (for example, I find it difficult to believe his assertion
to Dr. Martin in August 2007 that he used to walk five miles a day and can now
barely walk a few blocks without getting short of breath, if that was a
reference to pre and post-accident), but I am satisfied that he has suffered an
injury that has resulted in a permanent partial disability and will permanently
affect his enjoyment of life on a daily basis, causing him difficulty with self
care hygiene, dressing, moving up and down stairs, marital intimacy, home
maintenance tasks, and driving. The physical injury has also made it more
difficult to manage his obesity and other health issues related to fitness. His
wife testified that she feels as if she has lost her husband entirely.  He was
formerly able to lift and carry heavy automobile components and use heavy power
tools in the course of working on vintage cars, which was his main interest in
life; but he is unable to do that and has lost much of his zest for life.

[51]        
The plaintiff has referred me to cases where
non-pecuniary awards in the range of $125,000 to $150,000 were made and the
defendant relies on cases in the range of $70,000 to $75,000. I assess Mr.
Legault’s loss under this head of damages at $110,000, which is subject, of
course to the 50/50 apportionment of liability, as will be the case with the
awards under the remaining heads of damage.

Past Income Loss

[52]        
The plaintiff filed income tax returns from 1999
to 2007, reporting nil income. It was established in Iannone v. Hoogenraad
(1992), 66 B.C.L.R. (2d) 106 (B.C.C.A.) that this is not a bar to him
nevertheless claiming and recovering unreported income loss if he is able to
meet the burden of proof. Any claimant in his position has to overcome the
contradiction of his trial testimony by his filed income tax return, which
expressly requires a certification that it is correct, complete and full
disclosure and reminds the filer that it is a serious offence to make a false
return. The dilemma facing the plaintiff in this case is that he must ask the
court to accept as a fact that he was dishonest on an annual basis in filing
many false returns, and then he must persuade the court that his evidence at
trial should be accepted, notwithstanding the undermining of his personal credibility.
I noted previously that I found that Mr. Legault embellished his narrative of
the accident and exaggerated his pain behaviour while testifying. These
observations also impinge on his credibility and the reliability of his
evidence pertaining to income loss.

[53]        
Mr. Legault has not held remunerative employment
for decades. He asserts in submissions that he earned income in the range of
$15,000 to $16,000 per year in the time frame of 2000 to 2005 from a
combination of sales of model cars and profit from buying, improving, and
reselling vintage automobiles. Mr. Legault testified that his last job was as
the manager of an arcade for approximately one year, and he recalls working as
a garbage man for a few months. He did not specify when he held these jobs, but
he said that he did not like the “9 to 5 grind” and since his marriage in 1985,
his income has come from buying and selling “anything” and from refurbishing
“one fine car per year”. He has a Grade 8 education and he learned automotive
mechanical skills from his father and worked as a body shop apprentice in McClure
in 1971.

[54]        
Mr. Legault testified he started a model car
collection at age ten and has had up to 7000 models. With his daughter’s
assistance he started selling these on eBay. He estimated that he sold $40,000
to $50,000 worth in the 2002 to 2005 inclusive time frame, but he provided no
documents to support that estimate. He testified that he would buy models on
sale for $3.50 each and wrap and ship them to buyers who paid from $10 to $100.
He estimated his profit from the sale of model cars was $34,500 over the stated
four-year period, but provided no documentary support for that estimate. He
testified that he has discontinued that enterprise since his injury because he
needs both hands to paint the models and his left arm is unsteady, and he does
not have the physical stamina to go out and buy product.  He said packaging and
wrapping is painful.

[55]        
In respect of income from buying and restoring
and selling old cars, or in some cases simply buying and reselling vehicles or
parts, Mr. Legault and his wife compiled a table from their recollections,
which lists 14 vehicles plus some components, together with the purchase price,
the amount invested in parts, and the selling price, and concluding that over
the six-year period from 2000 to 2005, he realized a profit of $59,800 from
that enterprise. That compilation is of course not corroborative documentation,
but four of the sales transactions were corroborated by the individuals that
purchased those vehicles. I note that one sale with a $2,000 profit occurred in
1999 according to the buyer, rather than in the stated period, and that one
vehicle, a 1966 Pontiac GTO, which realized a profit of $11,000, was actually
sold in July 2006, although it was a special restoration job by Mr. Legault
that was in his possession for several years before the sale. It would
therefore be appropriate to consider that the stated total profit was made over
at least a seven-year period.

[56]        
The evidence does not satisfy me that Mr. Legault
was wholly disabled from earning any income from his usual sources between the
date of the accident and the trial date. I certainly accept that his injury and
the ensuing arthritis and chronic pain effectively made it impossible to do the
body work and mechanical repairs he was formerly capable of, but he was still
able to buy and sell either model cars or actual automobiles. Mrs. Legault
testified that she brought several models up from the basement for him to work
on in an attempt to motivate him and he did assemble a few, but he became
frustrated and she took them back down. She confirmed that she would like him
to get counselling for his depression, which he has not yet undertaken. She
testified initially that he was on medication for depression when they met, but
she corrected herself to say that it began when his brother died. (It will be
recalled that Mr. Legault dated the commencement of depression medication to a
dispute with neighbours about one year prior to the death of his brother.) It appears
to me that as far as pursuing his previous vocational interest in buying and
selling cars and model cars is concerned, Mr. Legault’s emotional response to
his injury is a more disabling factor than the direct effects of the injury.
While his pre-existing major depression was aggravated to an extent by the
accident, he was used to living with depression and in my view his apparent
lack of motivation to try to overcome the effects of the slip and fall accident
cannot all be attributed to the accident.

[57]        
Taking into account the frailties in the
evidence due to the lack of documentation and the credibility and reliability
issues, and my finding that Mr. Legault failed to make his best efforts to
mitigate his losses, particularly in respect of the resale of models, I assess
his loss of income prior to the trial at approximately $12,000 per year, for an
award under this head of $50,000.

Loss of Future Earning Capacity

[58]        
It is acknowledged that this head of damage
compensates for a capital asset, but one of the common methods of approaching
the assessment is to estimate an annual loss and award the present value of the
loss of future income stream, taking some account of negative and positive
contingencies and also the considerations set out in Brown v. Golaiy
1985 Vancouver Registry No B831458 (BCSC) and approved in Kwei v. Boisclair
(1991), 60 B.C.L.R. (2d) 393 (BCCA), which are whether:

1.       the plaintiff has
been rendered less capable overall from earning income from all types of
employment;

2.       the plaintiff is
less marketable or attractive as an employee to potential employers;

3.       the plaintiff
has lost the ability to take advantage of all job opportunities which might
otherwise have been open to him, had he not been injured;

4.       the plaintiff is
less valuable to himself as a person capable of earning income in a competitive
labour market.

[59]        
Mr. Legault was in a relatively unique category
before the slip and fall in that he had decided many years previously that he
would pursue only self-employment in his area of interest and expertise, namely
restoring old cars and buying and selling car components and model cars. There
was, in my assessment, no likelihood that he would have reverted to seeking
employment in a competitive labour market. That is not only because he had
chosen and set his path, but also because of his pre-existing health concerns
of diabetes, hypertension and depression, his age and his level of education.
Nevertheless, he certainly has lost value to himself as a person capable of
earning income, and I am satisfied there is a realistic possibility that but
for the accident he would have had the capacity to earn more income than he now
will be able to earn, even after he receives the benefit of counselling.

[60]        
I think a realistic assessment of the annual future
income loss he might suffer is $10,000 per year to age 65. There is obviously a
chance he would not have continued his restoration or buying and selling cars
as long as age 65, but there also is a chance he could have utilized eBay to a
greater extent than is now feasible.

[61]        
Based on the evidence provided to me of the
applicable income loss multipliers that would have applied if the trial had
proceeded in August 2009, and making some estimated adjustments, the present
value of $10,000 per year from January 2010 to Mr. Legault’s 65^th
birthday (adjusted for survival contingency) is approximately $90,000. There
are negative and positive contingencies which are difficult to estimate, but
which in the case of Mr. Legault I find more or less offset each other, so I
will not make any further contingency adjustment. The assessment under this
head is $90,000.00

Future Care Costs

[62]        
The plaintiff provided a report from an
Occupational Therapist, Carol Burden, suggesting the benefit of a variety of
professional services, including physiotherapy, occupational therapy,
counselling, dental services, weight loss services, as well as compensatory
homemaking and home maintenance services. She also recommended an adjustable
bed for a 6-12 month period, bathroom equipment, and an adjustable shoulder
support. She priced Lyrica and Fentanyl medication on an annual basis and
estimated certain other expenses in the event that future surgery was required.
The need for some of these recommendations is not supported or is
contra-indicated in the medical evidence, but I am satisfied that the following
items are or will be needed to the extent quantified:

[63]        
Making use of the future care cost multipliers
provided in the report from Peta Consultants Ltd., I estimate the present value
of the projected homemaking and home maintenance expenses from the date of
trial to Mr. Legault reaching age 80 at approximately $48,000, and the present
value of his share of the cost of medication for his lifetime at $12,480.

[64]        
The total of the one-time expenses and the
present values of annual expenses is:

$  8,820.00
$  1,950.00
$  2,250.00
$     233.95
$48,000.00
$12,480.00
$73,733.95 (rounded to $73,734.00)

 In Trust Claim for the Plaintiff’s Wife

[65]        
I am satisfied on the evidence that Mrs. Legault
has nursed, cared for and assisted the plaintiff in many ways over and above
what should be expected of a normal dutiful spouse for a protracted time and at
considerable inconvenience to herself while continuing to be the prime
breadwinner for the family. An in trust award to compensate her in the sum of
$25,000 is appropriate.

Special Damages

[66]        
There was no compelling submission made against
allowing the special costs claim in the sum of $5,577.00 and I award that
amount.

Court Order Interest and Income Tax Gross-up on Part of Future
Care Costs Award

[67]        
The evidence presented did not equip me to deal
with these matters. Liberty is granted to counsel to address these items if they
fail to agree.

Costs

[68]        
Costs on Scale B will follow the event, with
liberty to apply if there are pre-trial matters affecting same.

Summary of Awards Prior to Apportionment of Liability

[69]        
The following assessments have been made:

[70]        
Accordingly, the plaintiff shall recover from
the defendant the sum of $177,155.50, plus costs, tax gross-up to be determined
by counsel or on application, and appropriate court order interest.

“I.C. Meiklem J.”

MEIKLEM
J.