IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110415

Docket: 06-1451

Registry:
Victoria

Between:

Debora
Ann Biggan

Plaintiff

And:

Jeannette
Jaqueline Fall, the Estate of Lloyd Scott,
Deanna Lynn Leask and Thomas MacEwan Leask

Defendants

And:

The
Estate of Lloyd Scott and Stewart Scott

Defendants by Counterclaim

Before:
The Honourable Mr. Justice Bracken

Reasons for Judgment

[1]            
The plaintiff by counterclaim in this action seeks damages against the
estate of Lloyd Scott and his son, Stewart Scott (the “Scotts”), pursuant to s.
3 of the Occupiers Liability Act, R.S.B.C. 1996, c. 337.

[2]            
The action arises from an unusual motor vehicle collision that occurred
on the Shawnigan-Mill Bay Road near Shawnigan Lake, British Columbia, on the
morning of August 15, 2005.

[3]            
At approximately 10:15 a.m. a vehicle driven by Debora Ann Biggan (“Biggan”)
was travelling west on the Shawnigan-Mill Bay Road and a vehicle driven by
Deanna Lynn Leask (“Leask”) and owned by Thomas MacEwan Leask was travelling
east on the same road.  Shawnigan-Mill Bay Road is a main thoroughfare between
the Trans Canada Highway at Mill Bay and the Village of Shawnigan Lake.

[4]            
The plaintiff by counterclaim, Jeannette Jacqueline Fall, was at work at
a residence at 1500 Shawnigan-Mill Bay Road.  She worked as a home care provider
for the owner of the home, Lloyd Scott.  Her work involved preparing meals,
cleaning and on occasion, doing outside work or gardening.  Mr. Scott’s
son, Stewart Scott, kept an office at his father’s home and was a frequent
visitor to the home.  He sometimes stayed overnight at the home, although he
had a residence in Victoria as well.  He occasionally gave instructions to Ms.
Fall as to the work that she was to do.

[5]            
Sometime in late 2003, Lloyd Scott had a stroke and as a result,
suffered from serious physical disabilities.  After Mr. Scott’s stroke, Ms.
Fall worked more frequently at the home and her duties expanded.  Lloyd Scott
died in 2008.

[6]            
At the time of the accident Lloyd Scott owned a car that he kept in a
garage attached to his house.  The garage was part of the lower level of the
house and was walled off from the remainder of the basement of the home.  As a
result of his disabilities, he was no longer licensed to drive and the car had
been sitting in the garage without having moved for at least one year.  The car
was unregistered and uninsured.

[7]            
On August 15, 2005, Ms. Fall took the keys to the car and backed it out
onto the driveway in front of the garage, intending to wash it.  Before moving
the car, she located what she believed was a suitable piece of firewood and a
rock and placed them on the driveway to block the wheels to prevent the car
from rolling backwards down the driveway.  The driveway in front of the house
runs in a straight line downhill towards Shawnigan-Mill Bay Road.

[8]            
She parked the car on the driveway and said she felt the rear wheels
come in contact with the rock or piece of firewood.  She put the manual
transmission in first gear, applied the hand brake and got out.  The car has an
alarm system which sounds if the keys are left in the ignition, and as a result
of hearing the chimes, she reached in, took the keys from the ignition, and
placed them on the seat of the car.  She then started to walk back to the house
to get some cleaning equipment.  She walked behind the car and as she did so,
she noticed it was starting to roll backwards.  She moved out of the way and
the car continued rolling backwards down the driveway towards the road.  Ms.
Fall does not recall anything that happened after that point.

[9]            
When the car reached the Shawnigan-Mill Bay Road, it collided with the
vehicles driven by Biggan and Leask.  The Biggan and Leask vehicles then
collided with each other.  Although Ms. Fall does not recall doing so, it is
apparent she ran beside the Scott vehicle as it rolled down the driveway.  A
witness to the accident, Mr. Brian Mellings, observed her running beside the
car and saw her become involved in the collision.  She somehow ended up under
the Biggan vehicle and she suffered serious injuries.

[10]        
The trial of this action involves only the claim of Ms. Fall against Stewart
Scott and the Estate of Lloyd Scott.  It is admitted that the Scotts were
occupiers of 1500 Shawnigan-Mill Bay Road as that term is defined in the Occupiers
Liability Act.

[11]        
Ms. Fall worked as a housekeeper for Lloyd Scott and had done so for
about six years prior to August 15, 2005.  She cleaned the house and prepared some
meals initially.  Later, after his stroke, she also did some gardening and
other work around the property.  Stewart Scott lived primarily in Victoria.  He
kept one room of the house as his office and stayed at the house from time to
time.  Ms. Fall did not enter that office without instruction from Mr. Scott.

[12]        
Ms. Fall occasionally took instructions respecting the work she was to
do from Stewart Scott, particularly after his father suffered a stroke.  When
it became clear Lloyd Scott would not recover sufficiently to obtain a driver’s
license, it was decided his car should be prepared for sale and sold.  To that
end, Stewart Scott asked Ms. Fall to clean up the car when she had some extra
time.  Ms. Fall knew the car had been sitting idle and that it had not been
moved for some time.

[13]        
Ms. Fall said Stewart Scott called her a couple of days before August
15, 2005 and asked her to clean the inside and outside of the car and to remove
any of his father’s personal belongings.  She said when she arrived at the
house on August 15th at about 7:45 a.m. she attended to her regular cleaning. 
Then, about two hours later, she started work on the car.  She said Stewart
Scott had told her the keys for the car were kept on a nail in a wall near the
staircase.  She said he told her the keys were concealed so his father could
not find them and attempt to drive the car himself.  She retrieved the keys
from the nail, intending to move it outside where she could wash it.  The car
was a Hyundai sedan and it had a standard transmission.  Ms. Fall is an
experienced driver and was familiar with and able to drive a standard
transmission vehicle.

[14]        
She opened the garage door and placed the block of wood and a rock on
the driveway to block the wheels.  She backed the car out of the garage and
believed the rear wheels contacted the blocks she had placed on the driveway. 
She stopped the car, shut it off, placed the transmission in first gear, and
applied the hand brake.  She then got out and went around the rear of the car,
to get some other equipment she needed to wash the car.

[15]        
She said she had previously seen other cars, including Stewart Scott’s
car, parked on the driveway in front of the garage.  She was aware of the slope
of the driveway and she was aware of the risk of an unsecured vehicle rolling
backwards down and onto Shawnigan-Mill Bay Road.

[16]        
Mr. John Drummond lived with Ms. Fall in August 2005 and he knew Stewart
Scott, although he did not know Lloyd Scott.  He said Stewart Scott normally
phoned Ms. Fall to instruct her on any additional work he wanted her to do.  He
said Stewart Scott called Ms. Fall a couple of days prior to August 15th, he
believed it was on August 12th, the Friday before August 15th.  He understood Mr. Scott
wanted her to clean the inside of his father’s car and to wash the outside. 
Mr. Drummond was aware the car had been sitting for a long period of time and
at his suggestion, Ms. Fall took a battery charger from their home to
charge the battery while she was cleaning the house.

[17]        
Stewart Scott said Ms. Fall came to his father’s home about twice a week
after his father’s stroke in 2003.  Her tasks were general cleaning and some
cooking and at times he asked her to do additional chores around the property.

[18]        
He said his father’s car was kept locked and had been parked in the
garage for at least one year.  He said the keys were kept in the upstairs room
that he used as his office and were hung on a key rack.  He denied the keys
were kept on a nail by the stairs in the house.

[19]        
He had no recollection of calling Ms. Fall on August 12, 2005, but said
they did have a brief conversation on August 14, 2005.  He asked her to call if
she thought she would have any extra time when she was at the house the next
day as he wanted her to clean the car.

[20]        
She did call him before she left for work early in the morning on August
15, 2005 to say she believed she would have time to do the car.  He said he
told her he was not able to come to the house to move the car that day so she
should only clean the inside of the car and remove his father’s possessions. 
He said he told her she could find the keys in the upstairs room he used as his
office.  He said he also told her the outside of the car would have to be done
on a different day as he believed the battery was likely dead.

[21]        
He agreed an unsecured vehicle parked on the sloped driveway at the
house could roll backwards onto Shawnigan-Mill Bay road.  The driveway cannot
easily been seen from the road as it is obscured by trees.  He said he never
gave Ms. Fall any instruction on how to manage the risk of the sloping driveway
as there was never any occasion that required such an instruction.  He said he did
not give her any instruction to move the car on August 15, 2005 or any other
day.

[22]        
Ms. Jeanette Guetchev was Stewart Scott’s girlfriend in August of 2005. 
She said early in the morning on the day of the accident, she was with Mr.
Scott when he received a telephone call.  The call was received shortly after
6:30 a.m.  She believed the call was from Ms. Fall.  She said she heard Mr.
Scott instruct the caller to only clean the inside of the vehicle and that the
outside would have to be done on a different day as he could not be there to
move the car.  She did not recall him giving an explicit instruction not to
move the car, only that the outside would have to be done on another day.

[23]        
Ms. Fall said Stewart Scott told her to where the keys were kept, a fact
she could not have known otherwise.  She found the keys on a nail by the
staircase.  She said the vehicle was unlocked when she went to it and thus, the
only reason the keys were necessary was so the vehicle could be moved.  Mr.
Scott said the vehicle was always locked and the keys were necessary to open
the doors so that Ms. Fall could have access to the interior.

[24]        
Mr. Drummond corroborated Ms. Fall’s testimony that she understood she
was to wash both the inside and the outside of the vehicle, and he provided her
with a battery charger so the car could be started if the battery was dead.  He
also said she took cleaning equipment with her that was necessary only if she
was to wash the outside of the car.  Ms. Guetchev, on the other hand,
corroborated Mr. Scott’s evidence that he told Ms. Fall only to clean the
inside of the vehicle as he was not available to move the car out of the garage.

Discussion

[25]        
It is clear Ms. Fall was given some direction with respect to cleaning
the inside and outside of the car.  I conclude there was an initial discussion
about cleaning both the inside and the outside of the vehicle if she had enough
time.  She was instructed to advise Mr. Scott if she thought she would have time
to clean the vehicle on August 15th, and she did call early in the morning that
day.  However, on that morning, Mr. Scott knew that he would not be available
to move the vehicle and he told her to restrict her cleaning activities to the
inside of the vehicle only.  I find the clear inference from that discussion
was that she was not to move the vehicle outside herself.  I find she took it
upon herself to move the vehicle to the driveway for the purpose of washing the
outside of the car.

[26]        
I also find that Ms. Fall was familiar with the property.  She had attended
on the property and used the driveway on numerous prior occasions.  She was
well aware of the risk of an unsecured vehicle rolling back onto Shawnigan-Mill
Bay Road.  Her awareness of that risk was demonstrated by her attempt to block
the wheels of the car before moving it from the garage and by placing the
transmission in first gear before getting out of the car.

[27]        
Once the vehicle started to roll backwards, the evidence shows that she
attempted to follow the vehicle down the driveway in the hope of attempting to
bring it under control and prevent it from getting onto the road. 
Unfortunately, she became caught up in the collision between the Biggan vehicle
and Mr. Scott’s vehicle, and finally, the collision that involved all three
vehicles.

[28]        
Section 3 of the Occupiers Liability Act states:

3  (1)    An occupier of premises owes a duty to take that
care that in all the circumstances of the case is reasonable to see that a
person, and the person’s property, on the premises, and property on the
premises of a person, whether or not that person personally enters on the
premises, will be reasonably safe in using the premises.

(2)        The duty of care referred to in subsection (1)
applies in relation to the

 (a)  condition
of the premises,

 (b)  activities
on the premises, or

 (c)  conduct
of third parties on the premises.

(3)        Despite subsection (1), an occupier has no duty of
care to a person in respect of risks willingly assumed by that person other
than a duty not to

 (a)   create
a danger with intent to do harm to the person or damage to the person’s
property, or

 (b)  act with reckless
disregard to the safety of the person or the integrity of the person’s
property.

[29]        
Ms. Fall says the Scotts, as occupiers of the premises, owed her a duty to
take reasonable care to ensure she was reasonably safe in using the premises.  She
argues the risk of the car rolling down the driveway and her action in running
beside it in an attempt to gain control of the car was a foreseeable risk of
moving the vehicle out onto the driveway in the first place.  Ms. Fall says the
risk of the accident occurring as it did was a reasonably foreseeable risk that
should have been anticipated by the Scotts and they are therefore liable for failing
to warn her not to use or move the vehicle: Rendell v. Ewert (1989), 38
B.C.L.R. (2d) 1 and Chretien v. Jensen, [1998] B.C.J. No. 2938.

[30]        
In Stynes v. Victoria (City), [1990] B.C.J. No. 244 (B.C.C.A.), a
tennis player was injured while playing on a tennis court owned by the City. 
He was familiar with the tennis court and was aware of some of the deficiencies
in the playing surface.  At trial, liability was assessed 60% against the City
and 40% against the plaintiff.  On appeal by the City, the court upheld the
trial judgment.  The court reviewed the trial judge’s findings respecting the
deficiencies in the playing surface and that the plaintiff was aware of some of
the defects and the resulting risk of playing on the court.  However, the court
concluded the knowledge of the plaintiff was not sufficient to prove he willingly
accepted the risks as his own risks.

[31]        
In Philippot v. Murphy, [1987] B.C.J. No. 530 (B.C.C.A.), the
plaintiff was injured in the process of lowering a marine ramp owned by the
defendants and situated on their property.  She claimed the defendants were
negligent in failing to warn her of the risk of lowering the ramp when there
was a very low tide.  The defendants knew the ramp would be very difficult for
the plaintiff if she used it when the tide was extremely low.  The court held
that the basis of the defendants’ liability was the failure to warn.  The court
stated at p. 4:

The fundamental basis of
liability for negligence continues to be the creation of a foreseeable risk of
harm.  That basic principle applies as much to failure to warn as to any other
kind of negligence; and is of particular importance in relation to such cases
because the danger of applying hindsight rather than foreseeability is
particularly serious.

[32]        
Ms. Fall also referred to the decision of Cempel v. Harrison Hot
Springs Hotel Ltd., [1997] B.C.J. No. 2853 (B.C.C.A.).  In that case, the
plaintiff and some companions walked down a public path on the defendant’s
property to visit a natural hot spring.  The hot spring was surrounded by a concrete
and barbed wire obstruction which the plaintiff climbed over in an attempt to
gain access to the pool.  In doing so, she fell into the pool and was severely
burned from the waist down.

[33]        
The trial judge found the defendant was liable for failing to ensure
that people using the premises would be reasonably safe in doing so.  The court
found the great hazard constituted by a pool of scalding water was a
significant factor in the case.  The nature and extent of that hazard was known
to the defendant, but not to the plaintiff.  The court apportioned 60% of the
fault to the defendant and 40% to the plaintiff.

[34]        
Ms. Fall submits the steepness of the driveway at the Scotts’ residence
was also a significant risk.  As such, she argues Stewart Scott should have
given a very clear instruction not to park the vehicle on the driveway as part
of any discussion about washing Lloyd Scott’s car.  She submits the initial
discussion was about washing both the inside and the outside of the car, and as
a result there should have been a clear warning of the risk that it might roll
down the driveway.

[35]        
The Scotts argue they did not breach any duty they owed to Ms. Fall. 
They say she voluntarily assumed any risk that was present by moving the
vehicle contrary to Stewart Scott’s instructions.  More importantly, they say
it was not reasonably foreseeable she would run down the driveway and onto the
road in an obviously futile attempt to try and bring the vehicle under control.

[36]        
The Scotts emphasize that Ms. Fall had been going to the residence and
using that driveway for a period of six years.  She had parked her own car on
the driveway, although typically she parked beside the house where the ground
is more level.  She is an experienced driver and familiar with the operation of
vehicles with a standard transmission.

[37]        
The Scotts refer to Mainardi v. Shannon, [2005] B.C.J. No. 1033
(S.C.) where at para. 21 the court stated a number of well-established
principles:

21 In applying the duty imposed by the [Occupiers’
Liability] Act to the facts of an individual case there are a number
of propositions of law that are well established by the jurisprudence.

(1)        The
plaintiff bears the onus of proving on a balance of probabilities that the
occupier breached his or her duty of care.

(2)        A
presumption of negligence is not created by the fact that the plaintiff was
injured.  The plaintiff must establish that some act or failure to act on the
part of the occupier resulted in his or her injury:  (Bauman v. Stein
(1991), 78 D.L.R. (4th) 118 (B.C.C.A.)).

(3)        The
duty of care imposed by the Act does not require the occupier to remove every
possibility of danger — the test is one of reasonableness, not perfection:  (Gerak
v. British Columbia (1984), 59 B.C.L.R. 273 (C.A.) (leave to appeal to
S.C.C. refused; Carlson v. Canada Safeway Ltd. (1983), 47 B.C.L.R. 252
(C.A.)).

(4)        The
Court is not entitled to resort to speculation when determining the cause of
the plaintiff’s fall and subsequent injury.  The plaintiff must prove the nexus
between his or her fall and the occupier’s failure to discharge his or her duty
of care:  (Cropley v. Daishinpan (Canada) Ltd., [2002] B.C.J. No. 2398,
2002 BCSC 1477 [paragraph] 22).

(5)        The
care that an occupier must take differs according to the nature and use of the
premises:  (Kayser v. Park Royal Shopping Centre Ltd. (1995), 16
B.C.L.R. (3d) 330 (C.A.)).

(6)        The occupier need not, in all
cases, show that he or she had a specific policy in place to deal with the
maintenance of the portion of the premises where the fall occurred.  The nature
of the premises will determine whether or not a maintenance scheme will be
required:  (Leduc v. Goodwill Investments Ltd., [1997] B.C.J. No. 1709
(S.C.) [paragraph] 20).

[38]        
The Scotts say there is no causal connection between any fault on the
part of Stewart Scott and the injuries that occurred to Ms. Fall.  Leaving
aside Ms. Fall’s conduct in running down the driveway beside the car, the Scotts
argue the mere possibility of the car rolling down the driveway and causing a
collision is not sufficient to find liability.  For this principle they rely on
the decision of Sarvis v. Arvanitia, [1993] B.C.J. No. 1841 (S.C.) at
para. 11 where the court stated:

Not every unexpected event, even
though possible, can be said to be reasonably foreseeable and, with the
greatest of respect to the able argument of counsel for the Plaintiff, I can
find only that the event in the case at bar was a possibility and not reasonably
foreseeable.  Counsel’s argument appears to me to advance the proposition that
the duty arises with respect to all foreseeable eventualities.  This, with
respect, makes the occupier an insurer of the safety of the Plaintiff.  A
sudden fight, a fire, careless physical movements of all kinds by which the
Plaintiff might be injured are “foreseeable” in the sense that they could occur
on the premises, but in my view to have to guard against all such contingencies
on that basis makes the occupier an insurer.

[39]        
The Scotts emphasize Ms. Fall was familiar with the property and had used
the driveway frequently.  She was an experienced driver.  She placed the car in
first gear and set the hand brake and attempted to block the wheels.  Those
actions clearly show she understood the risk of leaving the car stationary and
unattended on the driveway.  Thus, the Scotts argue Ms. Fall assumed any risk
of the car rolling back and causing harm.  See Barreda v. Butchart Gardens
Ltd., [2002] B.C.J. 837.

[40]        
The Scotts say further that Ms. Fall’s own conduct of running beside the
car to where she was caught up in the collision and injured was not only
completely unforeseeable, but was clearly a voluntary risk of harm she assumed. 
It was not a risk that can be associated with parking Mr. Lloyd Scott’s car on
the slope of the driveway: Leweke v. Saanich School District No. 63,
[2005] B.C.J. No. 1213 (C.A.).  The Scotts say they had no duty to warn of the
ordinary risks of parking a car on an incline.

[41]        
The Scotts also refer to the case of Wickham v. 270792 B.C. Ltd.,
[1997] B.C.J. No. 671 (C.A.) for the principle that a plaintiff must prove that
a breach of duty actually causes or contributes to damages or loss.  Causation
is a statement of fact and if no causation is found the action must be
dismissed (para. 6).

[42]        
Even if a breach of duty under the Occupiers Liability Act is
found on the part of the Scotts for failing to warn Ms. Fall not to park on the
inclined driveway or not to move the vehicle from the garage, they submit there
is no nexus between the injuries she received and that breach of duty.  The Scotts
submit the court is not entitled to resort to speculation in order to find Ms.
Fall’s injuries were caused by some conduct on their part: Lansdowne v.
United Church of Canada, [2000] B.C.J. No. 2188 (para. 23).

[43]        
The Scotts argue further there is no evidence of any defect in the motor
vehicle.  They say the court must not speculate there must have been some
defect that caused the transmission to slip out of gear or that the hand brake did
not function properly.  The fact the car had not been used for a long time does
not suggest that it was mechanically unsound or that its brakes were not
functioning properly.

Conclusion

[44]        
Even though Stewart Scott gave Ms. Fall some direction to clean the car
and initially told her to clean the inside and the outside, I find that early on
the morning of August 15, 2005 he clearly told her to only clean the inside as
he was not available to move the car from the garage.  I find she moved the car
to the driveway on her own initiative and not as a result of the direction of
Stewart Scott.

[45]        
I also find that given her knowledge of the premises and in particular
the nature of the driveway, she was well aware of the risk of parking any vehicle
on the driveway and demonstrated that awareness by attempting to block the
wheels of the vehicle and by putting the transmission in a low forward gear and
applying the hand brake before she got out of the car.

[46]        
There is nothing to suggest either Lloyd Scott or Stewart Scott were
aware of any defect in the motor vehicle, nor is there any evidence to
establish that there was any defect in the vehicle that could have caused it to
roll backwards down the driveway.  Finally, in reacting as she did by attempting
to follow the vehicle down the driveway, she assumed all risk of the injury
that in fact resulted.

[47]        
I am not able to find any breach of their duties under the Occupiers
Liability Act by the Scotts and the action on Ms. Fall’s counterclaim is
dismissed.  The Scotts are entitled to their costs.

               “J.
K. Bracken, J.”               

The
Honourable Mr. Justice Bracken