IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111209

Docket: S054927

Registry:
Vancouver

Between:

Thi (Sandy) Tran

Plaintiff

And

Kim Le Holdings
Ltd., 663584 B.C. Ltd. doing business as

Secret Nail and
Beauty Supply and Linh Nguyen

Defendants

And

663584 B.C. Ltd.
doing business as Secret Nail and Beauty Supply

and Linh Nguyen

Third
Party

Before:
The Honourable Mr. Justice Harris

Reasons for Judgment

Introduction

[1]            
On September 9, 2003, Ms. Tran went to shop in a store called
Secret Nail and Beauty Supply. She wanted to buy some supplies, including some
acetone, for a manicure and pedicure business she ran. Ms. Tran picked up
a gallon plastic jug of acetone and placed it on the counter so that she could
pay for it. Somehow the jug fell from the counter. Its contents leaked on the
floor. Ms. Tran slipped and fell on the acetone. She injured her lower
back. At first it did not seem to be serious. But she did not recover from her
injury and some months later had surgery to relieve pressure on a nerve that
was causing pain to radiate down her leg. The surgery was, at best, only
partially successful. Ms. Tran continues to have back problems that limit
her ability to work.

[2]            
Ms. Linh Nguyen was working at Secret Nail that day. Ms. Tran
contends that Secret Nail and Ms. Nguyen are liable for the accident and
must compensate her for the damages she has suffered. Ms. Tran says that Ms. Nguyen
did not take proper care in handling the jug of acetone. She says that the jug
of acetone was knocked off the counter by Ms. Nguyen when she attempted to
put a box on the counter. In lay terms, Ms. Nguyen was careless in trying
to put the box on the counter when the jug of acetone was there. It was that
carelessness that dislodged it, causing Ms. Tran to slip and fall.

[3]            
Ms. Tran contends that although her explanation of how the acetone
jug fell off the counter should be accepted, ultimately, it does not matter how
it was knocked off, or by whom. Secret Nail is liable because it is responsible
for its employees. It failed to properly instruct them how to take care in
handling a hazardous substance like acetone. Furthermore, it did not provide a
safe place to handle acetone at the point of sale. This latter point is based
on the argument that the sales counter was too high and narrow to be used for
the sale of a potentially toxic liquid like acetone. The counter was
unreasonably unsafe for the use to which it was put. For both of these reasons,
Secret Nail is liable under the Occupiers Liability Act, R.S.B.C. 1996,
c. 337.

[4]            
In the alternative, Ms. Tran submits that it was reasonably foreseeable
that the jug of acetone might be knocked off the counter, spill its contents
and injure someone nearby. Accordingly, Secret Nail breached the standard of
care of a reasonable business. It is, therefore, liable in negligence.

[5]            
The defendants do not dispute either that Ms. Tran slipped and fell
that day or that she was injured. They do say, however, that the accident did
not happen in the way described by Ms. Tran. They say the acetone jug was
knocked or fell off the counter inadvertently, perhaps by Ms. Tran herself,
but not as the result of negligence by any of the shop employees. The accident
was just that, a "pure accident", but not one that was the
defendants’ fault. In any event, they contend that Ms. Tran caused her own
injury by attempting to chase the rolling jug of acetone as it leaked its contents,
slipping and falling as a result.

[6]            
The defendants argue that there was nothing unreasonable about how they
handled the acetone at the point of sale. The counter was reasonably safe and
it was not reasonably foreseeable that something like acetone, which if spilled
could cause a slip hazard, would fall from the counter top.

[7]            
This claim involves, therefore, an assessment of whether the defendants
are liable for Ms. Tran’s injury. For the reasons that follow, I have
concluded that Ms. Tran has not proven that the defendants are liable to
her. I do not accept her evidence that the jug of acetone fell from the counter
because it was negligently knocked off by a Secret Nail employee. Further, Ms. Tran
has not discharged her burden of showing that a breach of duty caused the
accident to take place, regardless of how the jug fell. Accordingly, it is not
necessary to deal with the damages claim. The action is dismissed.

Liability

The legal framework: an outline

[8]            
Ms. Tran has based her case on both negligence and occupier’s
liability. Regardless of the foundation of the alleged liability, she carries
the burden of proving her case on a balance of probabilities.

[9]            
In common law negligence, Ms. Tran must show that Secret Nail, or
its employees, breached a duty of care they owed to her and that breach caused
her injury. Here, there is no dispute that the defendants owed Ms. Tran a
duty to take care in handling the jug of acetone at the point of sale. The real
legal disagreement between the parties turns on the nature of that duty and the
standard of care it entails. The defendants say it was not reasonably
foreseeable that a jug of acetone would fall from the sales counter and create
a hazard on which someone might immediately slip and fall on. They also take
the position that Ms. Tran’s injuries were not caused by any breach of
duty.

[10]        
From a practical perspective, little turns on the fact that this action
is also based on occupier’s liability. It is common ground that, as an
occupier, Secret Nail owed duties to Ms. Tran to ensure that she was safe
from unreasonable risks while she was on its premises. Occupiers have an
affirmative duty to take reasonable care for the safety of people allowed to be
on the premises. Ms. Tran’s counsel submitted that the standard of care
owed by Secret Nail under the Occupiers Liability Act is the same as the
standard of care owed to her in negligence.

[11]        
Ms. Tran made much of the fact that acetone is a controlled
substance because it has toxic qualities and is flammable. Those regulations relate
to the use of acetone. There are no regulations that govern how acetone should
be handled in a shop when it is sold. That does not mean, however, that the
toxic nature of acetone is irrelevant to the standard of care applicable to
handling it at the point of sale. Here, the principal concern with a possible spill
of acetone on the floor, however that might occur, is that it creates a risk of
slipping. In this respect, it is like many other liquids, some of which may be
more or less slippery than acetone. I accept, though, that acetone poses
additional risks of injury if, for example, its container were to fail and it
were to splash. I am satisfied that the standard of care for handling acetone
in any circumstance where it could be dropped and splash is higher than for an
equally slippery, but non-toxic liquid. Greater care needs to be taken in
handling bottles of acetone than, for example, milk.

[12]        
Having said this, the first question to decide is what led to Ms. Tran
slipping? Only when those facts are found can the legal principles be applied
to determine whether there is liability.

How did Ms. Tran slip and fall?

[13]        
Each side accuses the other of putting forward an unbelievable – or
worse, a fabricated – version of what happened that day. I agree that finding
the facts involves issues of credibility. The evidence of Ms. Tran
conflicts with the two principal defence witnesses, the defendant, Ms. Linh
Nguyen, and another employee working in the shop that day, Ms. Thuy Nguyen.
Accordingly, finding the facts involves testing the evidence of the witnesses
against the objective facts and the probabilities of the situation in the manner
described by O’Halleran J.A. in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.).
At page 356 O’Halloran J.A. said:

But the validity of evidence does
not depend in the final analysis on the circumstance that it remains
uncontradicted, or the circumstance that the Judge may have remarked favourably
or unfavourably on the evidence or the demeanour of a witness; these things are
elements in testing the evidence but they are subject to whether the evidence
is consistent with the probabilities affecting the case as a whole and shown to
be in existence at the time; and cf. Brethour v. Law Society of B.C.,
[1951] 2 D.L.R. 138 at pp. 141-2.

[14]        
In Brethour v. Law Society of British Columbia, [1951] 2 D.L.R.
138 (B.C.C.A.), O’Halloran J.A. said at 141-142:

The credibility of interested witnesses, particularly in
cases of conflict of evidence, must reasonably be subjected to an examination
of the consistency of their stories with the probabilities that surround the
currently existing conditions. In short, the real test of the truth of a story
of a witness in such a case must be its harmony with the preponderance of the
probabilities which a practical and informed person would readily recognize as
reasonable in that place and under those conditions.

[15]        
Stripped to its essentials, Ms. Tran says that when she went to
Secret Nail on the morning of September 9, 2003, she took a shopping basket and
gathered a number of items she wanted to buy. Ms. Tran was familiar with
the store and its counter having shopped there for supplies regularly. She took
the shopping basket and put it on the floor by the sales counter. Then she
collected a gallon jug of acetone from a shelf in the store, took it to the
sales counter and placed it on the middle of the counter, as she was directed
to do by Ms. Linh Nguyen. At this point, Ms. Linh Nguyen, who was
serving behind the counter and was standing directly opposite Ms. Tran,
turned around and took a cardboard box off the shelf behind her. According to Ms. Tran,
Ms. Nguyen had to reach up to shoulder height to take the box. She says Ms. Nguyen
was attempting to interest her in buying a steriliser contained in the box. Ms. Nguyen
then turned again and heaved the box onto the counter, thereby knocking the
acetone jug off the counter, onto the floor immediately in the vicinity of Ms. Tran.

[16]        
According to Ms. Tran, everything happened quickly. In reaction, Ms. Tran
turned to her right away from the falling bottle. As she did so, she saw the
acetone bottle bouncing away from her, leaking its contents. Her right foot
went out from underneath her and she fell down on her right buttock, under a
table and into the pool of acetone on the floor. As she fell, she also struck
her elbow. When she got up, her elbow and the right jean leg were wet from the
acetone. The acetone had also damaged one of her shoes.

[17]        
Although Ms. Tran had some difficulty using English to describe the
events in words, on several occasions she re-enacted Ms. Nguyen’s
movements in turning to take the cardboard box off the shelf and heave it onto
the countertop. She also re-enacted her own movements in turning, slipping and
falling. Her re-enactments graphically displayed how she says the accident
occurred.

[18]        
The evidence of both Ms. Linh Nguyen and Ms. Thuy Nguyen
contradicts Ms. Tran’s evidence that Ms. Nguyen dislodged the bottle
by displacing it with a box. Ms. Linh Nguyen says she was checking Ms. Tran’s
purchases at the computer when she heard a noise. She looked and saw Ms. Tran
pursuing the rolling acetone jug in an apparent effort to retrieve it. She then
saw her slip and fall as she leant forward to reach for it. Ms. Thuy Nguyen
testified that she saw the bottle fall, but did not see what caused the fall. She
too saw Ms. Tran scurry after the bottle and fall as she tried to retrieve
it.

[19]        
Ms. Tran says that the account given by the two witnesses who
“observed” the event cannot be true. It cannot be true because the layout of the
store compels the conclusion that there was not enough space for Ms. Tran
to set off running in pursuit of a rolling jug of acetone. Moreover, the store
layout, and in particular the height of the counter, prevented either Ms. Linh
Nguyen or Ms. Thuy Nguyen from seeing the bottle rolling on the floor or Ms. Tran’s
feet as she allegedly ran after the bottle. The counter would, so the argument
goes, necessarily have blocked their view. Their evidence on these points must
be rejected, and with it, the implication that Ms. Linh Nguyen did not
knock the bottle off the counter.

[20]        
It does not follow if I rejected the defence account of Ms. Tran
pursuing the jug and falling as a result, that I must find that Ms. Linh Nguyen
dislodged the jug as Ms. Tran insists she did. I can accept part or all of
a witness’s testimony. I take it, therefore, that the argument put to me is
that if I do reject the defence evidence of the pursuit and fall, I should
conclude that the witnesses’ evidence is so unreliable on this key point that I
should reject it on the question of how the jug fell in favour of Ms. Tran’s
more plausible account. Alternatively, I should conclude that the evidence has
been fabricated and reject it for that reason.

[21]        
I turn then to consider whether the layout and “geometry” of the store
assist in concluding that the defence evidence is, at the very least,
unreliable. This evidence is also important to the argument Ms. Tran
advances that Secret Nail breached its duties to her in using the counter when
selling her the jug of acetone.

[22]        
In assessing the witnesses’ evidence, it is important to bear in mind
several considerations. This accident occurred in 2003. Since that time Secret
Nail has moved, but in any event the counter in use in 2003 was replaced
shortly after the accident. The interior of the shop was also modified. There
are no recorded dimensions of any of the objects in the shop and no contemporary
plan of the layout as it existed at the time.

[23]        
When the accident happened it appeared to all to be a minor incident. Ms. Tran’s
clothes were wet, but she did not appear to be injured. Mr. Le, who was
managing the shop and was there at the time, did ask his staff what had
happened, but understandably he did not prepare an incident report. It is not
clear when Secret Nail first learnt that the accident had caused more serious
injuries than anyone had anticipated. Given that the counter was replaced
shortly after the accident and, certainly, before Ms. Tran returned to the
shop to take photographs of the Secret Nail’s interior, I am satisfied that the
counter was not available to be inspected when a claim was first advanced. All
of the witnesses are, therefore, in the difficult position of trying to
estimate dimensions and the locations of furnishings some eight years after the
accident. It would be unreasonable to expect precise or entirely reliable
estimates. One must, therefore, do the best one can to get a reasonable sense
of size and location. It is important also to remember that, at best, one can
expect only to recreate an approximate sense of the layout of the store and the
space between objects. I must be cautious in drawing conclusions based on
estimates that are sometimes little more than guesses or may otherwise be unreliable.
This is particularly so when I am being asked to reject a witness’ evidence of
what they recall seeing based on an argument that they must be wrong because,
for example, their view was blocked. The difficulty is that the conclusion that
their view was blocked depends on what may be unreliable estimates of the
height and place of objects in their field of vision. It may well be that the
more reliable evidence is what they remember seeing, not the estimates of the
size and location of objects.

[24]        
In September 2003, a customer entered the store through a door that was
recessed into the shop. On entering the store an L-shaped counter stood to the
right. The L-shaped counter was described by Ms. Tran as being about 8 feet
long. Its long side ran from near the front of the store towards the back. The
short side of the L ran about 4 feet parallel to the front of the store in the
direction of the right wall as one entered the store. The end of the short side
of the L faced the right wall near the display window. Ms. Tran was the
only witness to estimate the length of the counter at 8 feet. It is necessary
to treat that estimate with some caution given the difficulty she and all the
witnesses had with their estimates. I am not persuaded that the counter was as
short as 8 feet. It may easily have been 10 to 12 feet long.

[25]        
The only evidence on its location was that the L-shaped counter sat
several feet inside the store. In other words, the short side of the L did not
abut the display window. I find this to be a fact. It is more probable than not
that there was a gap of at least 4 feet between the counter and the display
window. The gap may well have been more, but this would line up the edge of the
counter with the doorway.

[26]        
There was conflicting evidence about the dimensions of the L-shaped
counter. Estimates of its height varied. Witnesses demonstrated how high the
counter was by reference to their bodies. More than one witness said the
counter was about chest height. Several witnesses used a tape measure against
their bodies in an effort to show the counter’s height.

[27]        
On the whole, the discrepancies in the height estimates were not very
significant. Most put the counter height somewhere between 40 to 44 inches. I
find the counter was 42 inches. I do not think any of the other findings of
fact I will make in this judgment would be any different if the counter was 40
or 44 inches high.

[28]        
The weight of the evidence suggests the sales counter doubled as a
display case. The top of the counter was most probably made of glass, and I so
find, although one witness said it was made of laminate.

[29]        
It is also clear that the top of the counter was relatively narrow. Ms. Tran
estimated it was about 12 inches wide. She, like other witnesses, used her
hands to estimate its width and then the estimate was measured with a measuring
tape. Ms. Thuy Nguyen also estimated it at 12 inches in a statement she
gave in 2005. In the courtroom, she estimated the width at close to 16 inches. Other
witnesses gave estimates of up to close to 2 feet.

[30]        
The variation in the estimates of the width of the counter is hardly
surprising given the length of time since it was last seen by any of the
witnesses. It is difficult to be confident about the accuracy of the estimates,
although most of the estimates clustered around about 16 inches. What is
helpful in getting a sense of the probable width of the counter is that a
computer monitor sat on its top. The evidence was that the computer monitor was
an old fashioned, bulky monitor that stood on a base. Mr. Le suggested
that the monitor did overhang the counter top to some degree. It is more
probable than not, and I so find, that the keyboard for the computer sat on a ledge
just below the computer screen.

[31]        
I do not think it realistic that a countertop only 12 inches wide would
accommodate the computer monitor with only a slight overhang. In my view, it is
probable that the countertop was at least 16 inches wide and more likely about 18
inches. Assessing the evidence, I find as a fact that the countertop was about 18
inches wide. Given that a keyboard sat on a lower ledge, the total width of the
counter must have been wider than 18 inches. To allow for the keyboard, I
estimate it to be between 2 and 3 feet wide.

[32]        
I find, also, that the computer was placed in the middle of the long
side of the L-shaped counter.

[33]        
There was shelving on the wall behind the counter. According to Ms. Tran,
the box that Ms. Linh Nguyen placed on the counter was sitting on one of
those shelves at about shoulder height. The shelving arrangement was said to be
similar to shelving shown in a photograph taken sometime later, after the store
had been renovated. The shelving shown in the photograph appears to be at most
12 inches deep. The shelving stands on a wider cupboard that might be about 24
inches deep.

[34]        
A table stood at some point opposite the L-shaped counter. How big it
was and where exactly it stood was not well-established in the evidence. Ms. Tran,
who was the only witness to estimate the size of the table, said it measured
six by three feet. But again, that is only an estimate and may not be reliable.
It stood in front of the door through which customers entered the store,
although it is not clear how deep it stood within the store. When a customer
stood facing the sales counter, the table would be somewhere behind them,
standing against or near a short wall on the left side of the store. I doubt
the table was located where it would obstruct the entrance to the store. I find
that the table was set against or very close to the wall opposite the counter.

[35]        
One of the few ways to attempt to derive the distances in the layout of
the store is by looking at the tiles shown on the floor in the photographs
taken by Ms. Tran some time after the accident. The evidence suggests that
those tiles were the same size as those that existed at the time of the
accident. Those tiles were one foot square. That allows some sense to be
developed of the amount of space within the store and what could happen within
that space and what could be seen.

[36]        
Those dimensions suggest the following. The width of the store from the
right wall to the short middle wall was about 18 feet wide. Allowing 2 to 3
feet for the cupboard on the right wall, 3 feet for sales staff between the
cupboard and the counter, a total counter width of 2 to 3 feet and 3 feet for
the table, there remained something in the order of 6 to 8 feet of space
between the counter and the table for customers to walk past the sales counter
and to be served.

[37]        
My attention was also drawn to photographs showing the layout at the
back of the store. A display case stood in the middle of the back of the store,
apparently in the place it stood in 2003. It was one of at least three cases
ranged across the back of the store. The middle case stood further forward than
the case to the right.

[38]        
Counting the tiles, it is clear that there was sufficient space in the
store for the far end of the L-shaped counter to stand about 12 feet into the
store, measured from the doorway. The evidence does not, however, clearly
establish how far the counter sat into the store or its exact length.

[39]        
The evidence only allows rough estimates of the dimensions and locations
of the objects in the store. By my estimates, which are derived from snippets
of evidence and an examination of the photographs, the middle of the counter
could have been anywhere from about 4 to 6 feet from the door. If Ms. Tran
was standing roughly at the mid-point of the counter or just to the entrance
side of the counter, she would have been about 3 to 5 feet from the door. These
measurements should not be taken to imply a precision, which in the
circumstances I view to be unattainable.

[40]        
In my view, it is more probable than not that someone standing at or
near the cash register would be standing more than 3 or 4 feet from the doorway.
Placing the cash register so close to the door would inevitably clog the
doorway and impede access to the store. It is more probable that the cash
register would be more deeply recessed into the store. If Ms. Tran had
been standing so close to the door when she was paying for her purchases, I
would have expected her to have said so.

[41]        
I have gone into some detail to examine what one can conclude about the
store layout because the argument that Ms. Tran advanced that the
defendants’ evidence must be inaccurate or false turns critically on whether,
given the store’s layout, it is impossible for them to have seen what they said
they saw and for Ms. Tran to have acted in the way they said she did. Most
particularly, Ms. Tran argued that there was no space in the store for her
to "run" or "scurry" after a bottle rolling on the floor. It
was impossible for the witnesses to see her feet when they were standing behind
the counter.

[42]        
I have concluded that the description offered by both defence witnesses
of what they saw Ms. Tran do, is something they could reasonably have observed
given the dimensions and layout of the store.

[43]        
Ms. Tran acknowledges seeing the jug bouncing and rolling away from
her. As I understood the evidence, the jug was bouncing in the direction of the
door and under the table. There must have been several feet available for the
jug to bounce and roll. Ms. Tran did not suggest that the jug rolled out
of the doorway. I have already concluded that there must have been something in
the order of 6 to 8 feet between the counter and the table. Ms. Tran would
have been able to take several short steps across that space. I am satisfied
that there must also have been several feet of space in the direction of the
door in which she could move. Ms. Tran had ample room to take two or three
short steps or, likely, more. In the space of 6 or 8 feet she could easily have
given the impression of scurrying or running after the bottle. The jug could
readily have rolled 6 or 8 feet and rolled under the table. If this happened, Ms. Tran
could easily have stepped into the acetone that had been spilling out of the
jug. Ms. Tran agrees that the bottle went “bump, bump, bump”, away from
her. Taking at least a step or two, and perhaps three or four, to reach for the
jug would be a natural reaction, but more importantly, for current purposes, I
find there was sufficient space in the shop for Ms. Tran to take those
steps, slip and fall. There was nothing about the layout of the store that
would prevent Ms. Linh Nguyen or Ms. Thuy Nguyen from observing Ms. Tran’s
movements.

[44]        
Moreover, it was not impossible for either Ms. Linh Nguyen or Ms. Thuy
Nguyen to see the bottle on the floor or Ms. Tran’s feet as she moved. Ms. Tran’s
theory is that the counter was too high for either witness to be able to see
the floor area where the jug was rolling or her feet moving. I disagree. Ms. Linh
Nguyen stands about five foot four inches and Ms. Thuy Nguyen about five feet
two inches. Obviously, there would be a blind spot on the far side of the counter,
but the size of that blind spot was not established in the evidence. Common
sense suggests that someone could reduce and practically eliminate the blind
spot simply by leaning forward and looking over the counter. Nothing in the
evidence of Ms. Linh Nguyen or Ms. Thuy Nguyen supports an argument
that they had so positioned themselves behind the counter to prevent them
seeing a substantial part of the floor between the counter and the table. I am
not persuaded that given the dimensions I have laid out it was impossible for
either witness to see what they say in their evidence they saw. To the
contrary, I find that they could have been able to see what they said they saw.

[45]        
In conclusion, I dismiss the argument that the evidence of both Ms. Linh
Nguyen and Ms. Thuy Nguyen must be rejected because it cannot possibly be
true. I have not been persuaded by Ms. Tran that the dimensions and
placement of objects in the store made it impossible for the defence witnesses
to have seen what they testified they saw. Of course, this conclusion simply
establishes that their evidence does not have to be rejected as impossible. It
does not mean that I have to accept it.

[46]        
I am satisfied that Ms. Tran bears the persuasive onus to establish
that the physical dimensions and layout of the store rule out the possibility
that the evidence of the defendants could be true. This has not been established
to my satisfaction. Furthermore, although both Ms. Linh Nguyen and Ms. Thuy
Nguyen were challenged on whether they could see what they said they saw, Ms. Tran
developed insufficient evidence of the size and location of objects within the
store to establish that their evidence could not be true. For example, there
was no clear evidence of how deeply recessed the L-shaped counter was into the
store. Yet this, and some persuasive evidence about its length, would be necessary
to establish her theory that there was no room for her to run or scurry after
the bottle. Similarly, insufficient evidence was led to establish that the
sightlines from behind the counter ruled out the defendants’ evidence. Ms. Tran
developed insufficient evidence of the space between the counter and the table
for me to reliably reach a conclusion that someone standing behind the counter
could not see a large part of the floor area between the counter and the table.

[47]        
It is necessary, therefore, to analyze the evidence to find the facts
about what happened that day on the assumption that Ms. Linh Nguyen’s and Ms. Thuy
Nguyen’s evidence could be true. For the reasons that follow, I have concluded
that I cannot accept Ms. Tran’s version of how the bottle of acetone came
to fall from the counter.

[48]        
Ms. Tran says that after she placed the bottle of acetone on the
middle of the counter, Ms. Linh Nguyen turned around and reached up to
take a cardboard box off the shelf behind the counter. The cardboard box
apparently contained a sterilizer that Ms. Linh Nguyen wanted to show Ms. Tran.
A number of witnesses testified that large items such as the sterilizer were
kept at the back of the store and not at the front. I accept that evidence. In
particular, the display areas at the front of the store and the shelving behind
the counter were used to display small items for sale. That is a more logical
use of the space than cluttering it up with cardboard boxes. The photograph of
shelving similar to that behind the counter in 2003, also suggests that the
shelving is not suitable to hold larger cardboard boxes of the size this box
was estimated to be. I find that there was no cardboard box stored on the shelf
behind the counter.

[49]        
Ms. Linh Nguyen’s evidence was that at the time the acetone bottle
fell off the counter, she was using the computer to process Ms. Tran’s
purchases. In the circumstances, the evidence that she was ringing in the
purchases is eminently plausible. She was not asked in cross-examination
whether she had turned to take a cardboard box from the shelving. Given the
importance of this point to Ms. Tran’s case, Ms. Nguyen’s evidence on
this point should have been tested. The only cross-examination on whether Ms. Tran
was being shown a box was to the effect that it was possible that someone else
might have been showing her a box. That is not an admission either that she had
taken a box and put it on the counter or that anyone else had. It represents
nothing more than the witness’ unwillingness to rule out a possibility, not
positive evidence that the event occurred. It was certainly not an effort to
deflect responsibility to someone else, as was suggested in argument. In the
absence of cross-examination on the point and in the circumstances of this case,
I am loath to find a fact adverse to Ms. Nguyen on such a central matter.

[50]        
The evidence of Ms. Linh Nguyen is broadly corroborated by the
evidence of Ms. Thuy Nguyen. Ms. Thuy Nguyen recalled seeing the
acetone bottle on the counter. She said that Ms. Linh Nguyen was standing
at the counter, close to the computer, cashing or calculating the purchases. In
her examination in chief, she said that she saw the bottle fall, but could not
remember what caused it to fall. She said that she did not remember whether a
cardboard box was behind the counter, but she did note that the sterilisers
were kept in the machine area at the back of the store. Ms. Thuy Nguyen’s
evidence is inconsistent with the proposition that Ms. Linh Nguyen knocked
the acetone off the counter by placing a cardboard box on it. Ms. Linh
Nguyen was working at the computer at the critical moment. If a box knocked the
bottle off the counter, Ms. Thuy Nguyen would have seen and remembered it.

[51]        
It was not demonstrated that Ms. Thuy Nguyen had any interest in
concocting the evidence of what she saw or any interest in supporting the
defendants’ case. Her credibility was attacked by Ms. Tran who said that
she could not have seen what she reported and her evidence at trial was
inconsistent with an earlier statement given to Ms. Tran’s counsel. I have
already dealt with the first point. Turning to the alleged inconsistency in her
evidence, at most there were minor discrepancies between a statement she gave in
2005 and her evidence at trial. Those discrepancies, to the extent they were
material, related to whether she had seen the bottle fall. The general thrust
of her evidence was not undermined. She was not demonstrated to lack
credibility. I am satisfied that Ms. Thuy Nguyen was an independent
witness who was in a position to observe the event and gave her evidence
honestly to the best of her recollection. Even if I accept that Ms. Thuy
Nguyen did not see the bottle fall or what caused it to fall, her evidence is inconsistent
with the bottle falling because Ms. Linh Nguyen knocked it off with a box.

[52]        
Both Ms. Nguyens gave evidence that when the bottle fell Ms. Tran
pursued it, or ran or scurried after it before slipping and falling. I do not
regard Ms. Thuy Nguyen’s witness statement in which she did not refer to Ms. Tran
pursuing the bottle to be inconsistent with her evidence at trial. Her evidence
at trial was more complete than her statement, and her evidence of seeing Ms. Tran
pursuing the bottle supplements her statement and does not contradict it. Only Ms. Tran’s
evidence casts doubt on the account of how she fell.

[53]        
Ms. Tran’s evidence was internally consistent. There are, however,
a number of problems with her evidence. Shortly after the accident, she
described what had happened to two of her treating medical professionals. Dr. Chang’s
medical records record Ms. Tran saying that she "reached over to pick
something. R[ight] foot slipped forward + fell onto R[ight] buttock”. Ms. Flora
Lee’s records record the following: “P[atien]t bent down + slipped + landed on
R[ight] buttock + ankle”.

[54]        
Neither of these descriptions is consistent with how Ms. Tran
described the accident occurring. Indeed, in cross-examination she disputed
those descriptions as an accurate account of what happened. Specifically, Ms. Tran
denies reaching over to pick anything up or bending down. Her evidence is that
she turned away when the bottle fell and slipped when her right foot went out
from underneath her. Although these descriptions of the accident do not refer
to her running after the acetone bottle, they are more consistent with a
description of her attempting to recover the bottle than simply turning and
slipping. They are more consistent with the defendants’ case than with Ms. Tran’s.

[55]        
Dr. Chang gave evidence. She testified to the effect that her
practice is to write notes of what patients tell her as they speak. She could
recall Ms. Tran telling her the story and said that the record reflects
what Ms. Tran had said. However, she acknowledged in cross-examination
that the entry was made a long time ago and that she was unsure if Ms. Tran
said that she was reaching or planning to reach for something.

[56]        
Ms. Tran acknowledged that she had told Dr. Chang about what
happened when she fell, but that she could not remember what she said and that
she did not think she had said she had been reaching to pick up something. She
could not remember saying that. She did remember telling Dr. Chang that
she had slipped and fallen, but did not remember what else she said.

[57]        
Ms. Flora Lee also gave evidence. She had no current memory of the
note in the records, but did say that the information came from the patient and
that she recorded such information as accurately as possible. She agreed that
the information had been given to her in Cantonese and then translated into
English.

[58]        
Ms. Tran acknowledged that she did tell Flora Lee about the
accident and did tell her that she had landed on her right buttock. She
disputed, however, that she had told Ms. Flora Lee that she had bent down
and slipped.

[59]        
Care needs to be taken in assessing the evidentiary significance of
statements by a party recorded in clinical records. The reasons for being
cautious in attaching too much weight to these statements are canvassed
thoroughly by Mr. Justice N. Smith in Edmondson v. Payer, 2011
BCSC 118. Such statements may be treated as admissions against a party. But
often what is recorded is synoptic, a paraphrase, incomplete and unqualified.

[60]        
Bearing those cautions in mind, I am satisfied and find that Ms. Tran
did describe the accident in terms broadly consistent with what is recorded. The
two records are consistent with each other. In the one, Ms. Tran is
recorded as saying that she bent down and slipped and in the other that she was
reaching over to pick something. Both records describe essentially similar
actions. They are couched in terms that are consistent with attempting to
retrieve an object. They do not describe simply turning away and slipping.

[61]        
Both statements were made very shortly after the accident, before it was
apparent that Ms. Tran had seriously injured her back and before there
could have been any consideration that they may be used in litigation. At that
time, Ms. Tran likely did not have any reason or incentive to provide
anything other than an accurate description of the accident.

[62]        
The admittedly brief and cursory description of the accident found in
both sets of medical records is more consistent with the defendants’ witnesses
who in various ways described Ms. Tran as taking off after the rolling
bottle of acetone in an effort to retrieve it, than the account of the accident
given by Ms. Tran. Whether I regard Ms. Tran’s descriptions as
admissions that are inconsistent with her evidence at trial or simply prior
statements that give rise to an issue of credibility, the effect is to
undermine my confidence that Ms. Tran gave me an accurate account of how
the accident occurred.

[63]        
I note as well, that Ms. Tran has an interest in giving a wholly
exculpatory account of how she slipped and fell. If Ms. Tran slipped
because she pursued the rolling bottle and thereby stepped into the acetone, it
is probable that an argument would be mounted that she caused her own injury,
or at least contributed to it, by choosing to step into a slippery substance
when she knew or ought to have known that it was risky to do so. The defendants
did argue contributory negligence at trial. I raise this issue because I have concluded
that Ms. Tran is willing to be untruthful to further her interests.

[64]        
My confidence in Ms. Tran’s credibility is undermined by the fact
that she has, on at least two occasions, admittedly not told the truth. In her
tax return for 2003, Ms. Tran knowingly understated her income by a very
substantial amount. Although she proffered an explanation for doing so, the
fact remains that she lied about her income. It seems to me also to be likely
that Ms. Tran did not declare income she received from part-time work
before the accident. Ms. Tran also lied about her income in her
examination for discovery. In substance, she said that the income tax statement
from 2003 was accurate when, subsequently, she was forced to acknowledge that
it was not. She said that she lied then because she was frightened to admit the
truth, having lied about her income in the past. I did not find this
explanation persuasive. Ms. Tran must have understood the importance of
telling the truth on her examination for discovery, but did not do so. Ms. Tran
is someone who has demonstrated that she is prepared to lie, even under oath,
when it is to her advantage to do so. That being so, I am unable to give weight
to her account of how the accident occurred except to the extent that it is
corroborated by other evidence.

[65]        
Finally, I find the defendants’ description of how the fall occurred
more accurate than Ms. Tran’s. The defendants describe Ms. Tran
moving forward and stepping into the spilling liquid. This describes a readily
comprehensible reason for her to fall. Ms. Tran says, on the other hand,
that she turned away to her right as the bottle fell. In my view, this movement
would take her right foot away from the bottle when it landed. Ms. Tran
did not describe anything other than that one movement before she lost her
footing. She described the bottle rolling away from her, spilling its contents
as it rolled. It does not appear to me likely that in these circumstances Ms. Tran
would have been standing in acetone.

[66]        
I find that Ms. Linh Nguyen did not knock the acetone bottle off
the counter with a cardboard box. I do not think it likely that there was a
cardboard box at the counter when Ms. Tran’s purchases were being
processed. There is no evidence that any other employee of Secret Nail knocked
the bottle off the counter. I find that Ms. Linh Nguyen was standing at
the computer terminal ringing in Ms Tran’s purchases when the bottle fell. It
has not been demonstrated by Ms. Tran that Ms. Linh Nguyen caused the
bottle to fall. Given that I have rejected Ms. Tran’s claim that Ms. Linh
Nguyen knocked the bottle off the counter, there is no other directly probative
evidence explaining why the bottle fell.

[67]        
Ms. Tran says that she put the acetone bottle in the middle of the
counter. Given my concerns about her credibility, I am not persuaded that she
did so. A plausible explanation for the bottle falling is that Ms. Tran
did not put the bottle safely on the middle of the counter, but put it near the
edge where she nudged it off. This explanation is more likely than any other
explanation involving any actions by any sales staff at Secret Nail.

[68]        
A gallon jug of acetone is a relatively large and heavy item. If it were
placed securely in the middle of an 18 inch counter it would not be easily
dislodged. It would be stable standing on the counter. It would require some
significant amount of force to dislodge it. It would not be moved by something
as simple as shifting small light items on the counter. Examining a jug said to
be similar to the one in the incident, it is obvious that it would not easily
topple over. Toppling it would also require that some significant force would
need to be imparted near to the top of the bottle. I am satisfied that the
amount of force needed to knock the bottle off the counter if it were placed
securely on it, or to topple it over, would be an amount of force that the
person applying it would register. A fall would not occur without the person
who caused it noticing that they had done something that caused the fall to
happen. I find that no employee at Secret Nail caused the bottle to fall off
the counter.

[69]        
Ms. Tran has not discharged her burden to prove that an employee of
Secret Nail caused the bottle to fall. It is, in my view, more probable than
not that Ms. Tran caused the bottle to fall, likely by failing to place
the bottle securely on the counter and then knocking it off herself.

[70]        
I accept that after the bottle fell, it bumped and rolled along the
ground spilling its contents as it did so. I find that Ms. Tran did make
an effort to retrieve the bottle and that in doing so she stepped into the pool
of acetone, slipping and falling as a result. I reject her evidence that she
simply turned in reaction to the falling bottle and then lost her footing.

[71]        
Before leaving this part of the case, I should say that I found Ms. Linh
Nguyen to be a forthright and straightforward witness. She did not
embroider her evidence with details that would have cast responsibility for the
accident directly on Ms. Tran. She made appropriate concessions to her
lack of memory of details. Ms. Tran suggested that Ms. Linh Nguyen had
made admissions that someone other than Ms. Tran had knocked the jug off
the counter and that someone may have been showing her a box. I do not read Ms. Nguyen’s
evidence in the way counsel urged me to. In my view, she was doing nothing more
than speculating or refusing to rule out possibilities, not admitting to
specific facts. The admonition of McEachern C.J.S.C., as he then was, in Diack
v. Bardsley (1983), 46 B.C.L.R. 240 at 247 (S.C.), aff’d (1984), 31
C.C.L.T. 308 (C.A.), referring to differences between the evidence of a party
at trial and what was said by that party on examination for discovery, is also
worth repeating:

I wish to say that I place
absolutely no reliance upon the minor variations between the defendant’s
discovery and his evidence. Lawyers tend to pounce upon these semantical
differences but their usefulness is limited because witnesses seldom speak with
much precision at discovery, and they are understandably surprised when they
find lawyers placing so much stress on precise words spoken on previous
occasions.

[72]        
Accordingly, I reject this basis on which Ms. Tran says that the
defendants are liable to her. But Ms. Tran also says that it does not
matter how the bottle fell and even whether she caused it to fall, because
Secret Nail is liable to her in any event. I therefore turn to consider
whether, nonetheless, Secret Nail is liable to Ms. Tran because it used a
counter to sell acetone that was unreasonably unsafe and because it failed
adequately to train its staff about handling acetone at the point-of-sale.

Is Secret Nail liable in negligence or under the Occupiers Liability Act?

[73]        
Ms. Tran’s position is that Secret Nail is liable to her even if
she were the one who knocked the bottle of acetone off the counter. The first
argument is that the counter was too high and too narrow to be used as the
point-of-sale counter for acetone. The second argument is that Secret Nail
failed to implement a reasonable scheme for the safe handling of acetone. If
the staff had been properly aware of the risks associated with using such a
high and narrow counter for selling acetone, they would have placed the jug on
the floor and not placed it on the counter where it was at risk of falling. She
argues that Secret Nail is liable under the Occupiers Liability Act and
in negligence.

[74]         
At this point, it is helpful to set out the law of occupiers’
liability in somewhat greater detail than hitherto to provide a framework for
this analysis. Secret Nail’s standard of care is governed by s. 3 of the Occupiers
Liability Act which 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. [Emphasis added.]

[75]        
As Madam Justice Ross put it in Ball v. GAP (Canada) Inc., 2001
BCSC 1106 at paras. 25-27:

[25] The standard expected of an occupier is one of
reasonableness, not perfection. In Milina v. Bartsch (1985), 49 B.C.L.R.
(2d) 33 (S.C.), (aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.), McLachlin J., as she
then was, wrote at p. 58:

…the duty owed by an occupier of
premises is to take reasonable care to see that persons using the premises will
be reasonably safe. The Acts do not impose a duty to take reasonable care to
insure that persons using the premises will be ‘absolutely safe’. As stated
in Hagerman v. Niag[a]ra Falls (1980), 29 O.R. (2d) 609, per Labrosse J.
at p. 613, the occupier does not owe a duty to provide safety in all
circumstances, but rather a duty to use reasonable care to prevent injury or
damage from danger which is known or which ought to be known.

[26] Case law holds that "an occupier is not an
insurer". Lamont v. Westfair Properties (Pacific Ltd.) et al., [2000]
B.C.J. No. 513 (Q.L.); 2000 BCSC 406, at para. 20.

[27] While it is the case that
the occupier is not an insurer and that the standard is not one of perfection,
the Act does place an affirmative duty on the occupier to make the
premises reasonably safe. See Waldick v. Malcolm, [1991] 2 S.C.R. 456.
[Emphasis in original.]

[76]        
The general principles of occupier’s liability were also summarized by
Preston J. in Mainardi v. Shannon, 2005 BCSC 644 at para. 21 as
follows:

[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. (4^th) 118 (B.C.C.A.)).

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

(4)      The
Court is not entitled to resort to speculation when determining the cause of
the plaintiff’s fall and subsequent injury. The plaintiff must prove the nexus
between his or her fall and the occupier’s failure to discharge his or her duty
of care: (Cropley v. Daishinpan (Canada) Ltd., 2002 BCSC 1477 ¶ 22).

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

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

[77]        
It is also clear that to comply with its duty, an occupier is required
to take reasonable steps to remedy any unsafe condition that would be seen by a
person applying his or her mind to the relevant risks associated with the use
of the premises. An occupier is not absolved of liability because a risk has
not yet materialised: Niblock v. Pacific National Exhibition and City
of Vancouver (1981), 30 B.C.L.R. 20 at 27 (B.C.S.C.).

[78]        
The elements for establishing a claim in negligence are well known. A
successful action in negligence requires that the plaintiff demonstrate that:
the defendant owed her a duty of care; the defendant’s action breached the
standard of care; the plaintiff sustained a loss; and the defendant’s breach caused,
in fact and in law, the plaintiff’s loss.

[79]        
Secret Nail concedes that they owed Ms. Tran a duty of care. However,
they maintain that Ms. Tran’s claim fails under the second element, breach
of the standard of care. The standard is one of the reasonable person, or in
this case, the reasonable business. What is “reasonable” was outlined by
Martinson J. in Wilde v. The Cambie Malone Corporation, 2008 BCSC 704
at para. 44:

[44] In this case, Ms. Wilde has plead
in the alternative, that Malones are liable in negligence. Negligent conduct is
defined in Ryan v. Victoria (City), [1999] 1 S.C.R. 201 at ¶ 28:

Conduct is negligent if it creates an objectively
unreasonable risk of harm. To avoid liability, a person must exercise the
standard of care that would be expected of an ordinary, reasonable and prudent
person in the same circumstances. The measure of what is reasonable depends on
the facts of each case, including the likelihood of a known or foreseeable
harm, the gravity of that harm, and the burden or cost which would be incurred
to prevent the injury.

[80]        
Even if the plaintiff can satisfy the court that the defendant breached
the standard of care, she still must prove that her damages were caused by the
defendant. The correct test for determining causation is the “but for” test: Resurfice
Corp. v. Hanke, 2007 SCC 7 at para. 21. The plaintiff must prove that
““but for” the negligent act or omission of each defendant, the injury would
not have occurred”: Resurfice, at para. 21.

[81]        
Ms. Tran bears the onus of demonstrating that Secret Nail breached
its duty to her and that breach caused her injury. In my view, Ms. Tran
has failed to discharge her onus. Ms. Tran’s argument holds Secret Nail to
a standard of perfection or treats it like it is an insurer. The defendant
cannot be held to a standard of providing absolute safety for any one on the
premises. The standard it is held to, under the Occupiers Liability Act
and in negligence, is one of reasonableness. I cannot find that Ms. Tran
has proven that the type of counter Secret Nail used in the course of business
or its handling practices for acetone were either unreasonably unsafe or fell
below the standard of care of a reasonable business.

[82]        
Ms. Tran has not demonstrated that the use of the counter breached
the standard of care owed to her as a customer buying acetone at Secret Nail. Nor
has she demonstrated that it was objectively unreasonable to use the counter in
the way it was used. I reach this conclusion fully aware that the standard of
care for selling a hazardous liquid is heightened.

[83]        
Furthermore, Ms. Tran has not demonstrated that any breach of the
standard, related to the use of the counter, caused the accident. In other words,
she has not proven that “but for” the breach, the jug of acetone would not have
failed and spilled its contents.

[84]        
In support of her argument that the type of counter chosen by the
defendant, what she refers to as a “receptionist’s counter”, fell below the
standard of care or was not reasonably safe, Ms. Tran states:

Receptionist’s
counters are usually found in offices or salons where transactions are limited
to paying for a haircut or receiving of mail or courier packages. In drug
stores, grocery stores and the like, ordinarily prudent business managers
provide lower, wider counters for the sale of products.

No evidence was led at trial in
support of this claim and it is not obviously true.

[85]        
Ms. Tran also did not lead any evidence about industry standards or
industry practice for sales counters in general or for sales counters used for
selling slippery liquids or other liquids that have toxic characteristics if
inhaled or if splashed on someone. Therefore, I have nothing that offers me
guidance, other than plaintiff’s counsels’ assertions, about whether the height
and width of this counter did or did not meet industry standards, if there are
any, or industry practice.

[86]        
In my view, evidence of industry standards or practice would have been
probative of the issue of the standard of care. The plaintiff’s failure to lead
this evidence, whilst not determinative, goes some way to support a conclusion
that Ms. Tran has not discharged the burden of proving the breach of duty.
In the absence of evidence, I have to determine whether it is simply obvious,
as a matter of common sense, to any reasonable observer that the use of this
counter breached the standard of care sounding in negligence or occupier’s
liability.

[87]        
By contrast, Secret Nail’s expert gave evidence about the very large
number of retail and wholesale outlets that sell a wide variety of both
hazardous and non-hazardous liquids in containers of a similar or larger size
than the one in question here. There is no doubt that potentially slippery
liquids (both hazardous and not) are commonly available in many stores. In this
circumstance, I would have expected the plaintiff to lead evidence that the use
of a counter of this kind was a departure from reasonable standards or typical
practice, recognising that compliance with industry practice is not necessarily
a complete answer if the industry standard is itself unreasonable.

[88]        
It is, I conclude, in any event, a notorious fact that liquids of both a
slippery hazardous and non-hazardous character are routinely sold in wholesale
and retail outlets in British Columbia. It is also notorious that containers of
these liquids are stored on shelving in retail and wholesale outlets and that
this shelving is often several feet high. It is by no means uncommon for
customers to have to reach above head height to take a container. The risk of
containers falling and failing is not completely eliminated in shops throughout
the province.

[89]        
Any container of slippery liquid stored at any height is at risk of
falling of shelving and being knocked to the floor. There are a myriad of ways
in which that could happen. Whenever it occurs, there is some risk that the
container might fail, depending on its particular characteristics, spill its
contents and create a slip hazard. I cannot find that virtually every retailer
or wholesaler who stores slippery liquids on shelving up to 6 or 7 feet high is
acting unreasonably or failing to ensure that the premises are reasonably safe
for customers.

[90]        
The same analysis applies when placing a container on a counter to buy
it. There is always some risk that the container could be knocked off, or
otherwise fall off, a counter regardless of its width and height. There is
always some risk that it could fail. An occupier is not required to make its
premises absolutely safe and eliminate all risk of injury. There must be some
basis against which to assess reasonable risk.

[91]        
In the absence of evidence about standard practice or industry
standards, I cannot conclude that the use of a sales counter of this height and
width is in fact so uncommon that that fact alone supports a conclusion that it
was unreasonable to use it. It is notorious that the dimensions of sales
counters vary widely in retail and wholesale outlets. Ms. Tran has not put
forward an adequate evidentiary basis to discharge her burden that Secret Nail
breached its duty to her by using this counter.

[92]        
I would have expected to be provided with some bench mark against which
to assess the use by Secret Nail of this sales counter. It should be remembered
that I have found that Ms. Tran has not proven that any of the sales staff
caused the bottle of acetone to fall. I have found that the most probable
explanation of the accident is that Ms. Tran did not place the jug
securely on the counter, even though she was familiar with the counter and
could easily have securely placed the acetone on it. I cannot find that the jug
was placed in the middle of the counter as Ms. Tran testified. I have no
confidence in the accuracy of her evidence on these material matters.

[93]        
Ms. Tran has not provided any evidence on the critical question of
what the counter’s dimensions should have been for Secret Nail to discharge its
obligations to her, if the counter was to be used for the sale of jugs of
acetone. She has not proven that the width of the counter played any role in
the bottle falling. On the face of it, the bottle would have stood securely on
the counter unless it was knocked off. The counter surface of 18 inches was more
than wide enough to safely and securely hold the jug. The diameter of the specimen
jug exhibited at trial is 5 ¾ inches wide. As I have noted above, when it is
full of acetone it would be relatively heavy and not easily knocked over or
dislodged. A minor touch or brush would not move it. In my view, it would not
be apparent to any reasonable observer that it was reasonably foreseeable that
it would be at any measurable risk of falling from the counter just because of
the width of the counter. The cause of the fall is not the width of the surface,
but where on the surface the jug was put by Ms. Tran, as well as someone’s
action, most likely Ms. Tran’s, in knocking it off.

[94]        
The same can be said in respect of its height. The evidence does not
demonstrate that the bottle would not have failed if the counter had been of a
“reasonable” height, whatever that height is. I had the benefit of a single “experiment”
in which a jug, that was said to be similar to the one in the accident, was
pushed off a height of 44 inches. The acetone in the jug was replaced with milk
for the purpose of the experiment. In the experiment, the jug hit the ground
top first and the hard plastic cap on the jug shattered, allowing the contents
to spill onto the floor. I was provided with the opinion that a plastic jug of
the type used in the experiment was not robust and that no engineer would
always expect it to, or be confident it would, survive a fall from 44 inches
intact, regardless of how the container landed on the floor.

[95]        
I cannot say that I found this reconstruction or opinion particularly
helpful. I was not provided with an opinion that there was a safe height from
which such containers could fall and expect to survive. This would have been
evidence relevant to the question whether “but for” the breach of the standard
of care the accident would not have happened. If there is such a height, I have
no idea whether it is 3 feet or 2 feet or 18 inches or somewhere in between.

[96]        
Moreover, in the experiment, the contents of the jug spilled out because
the plastic cap broke. It seems clear that that did not happen at Secret Nail. It
is clear that the cap did not break, but popped off, presumably because of the
momentum imparted to the contents of the jug on striking the floor.

[97]        
What is not established is how similar the jug in the experiment was to
the one that fell from the counter. The acetone jug used for the experiment was
bought from a supplier that appears not to have existed in 2003. There is no
evidence it was produced by the same manufacturer as the one in the accident. Beyond
the fact that its shape and size were similar to the one in the incident, I do
not know if the plastic jug that day was more or less robust than the one in
the experiment. I do not know whether the same or similar plastic caps were
used.

[98]        
What is clear is that in September 2003, the acetone jug leaked its
contents because the cap popped off. I do not know how likely that event was. I
was not given any opinion other than that one could not expect jugs similar to
this always to survive a fall from 44 inches. All that this tells me is that a
falling jug will not always survive. It does not help me approach the question
whether a reasonable observer ought reasonably to foresee that failure was more
than a mere possibility, but that the risk rose to a level of materiality that
a reasonable person would take steps to guard against the risk. I do not know
whether failure would not occur if the jug fell from a counter of a reasonable
height, whereas it likely or possibly or reasonably possibly would fail if it
fell from 42 inches high. I do not know whether there was a defect with the cap
or whether it was properly screwed on. I have nothing to guide me in assessing
how probable it was that the jug would fail in some way if it fell from that
height. It has not been demonstrated that it ought to have been apparent to the
principals and staff at Secret Nail that the possibility of failure of a
falling jug from the counter was sufficiently material that the counter ought
not to have been used when handling the sale of a jug of acetone. Certainly,
the evidence is that there had never been a similar incident before or after
September 2003, so they had no experience to guide them.

[99]        
Although it is common sense that any container is more likely to fail if
dropped from a higher rather than a lower height, I have no basis to assess how
much more probable a failure is in a fall from 42 inches as opposed to 30 or 36
inches. Moreover, I have no way of knowing whether this container would have failed
in any event, even if it fell from a counter that clearly met the standard of
care or was reasonably safe. If any counter is used at the point of sale, there
will be a risk that something could be knocked off it. That is true whether the
counter is 30 or 36 or 42 inches high or 15 or 18 or 24 or 30 inches wide.

[100]     It is not
apparent to me what a reasonable person applying his or her mind to the risks
associated with a bottle of acetone falling off a 42 or even a 44 inch counter
ought to conclude about the bottle failing. Certainly, a single experiment with
a bottle, that is not demonstrated to share the same characteristics relevant
to the risks of failure as the actual bottle and which does not reproduce the
mechanism of the actual failure, does nothing to advance the analysis. It may
be of little moment, but, having inspected the plastic jug used in the
experiment, I could draw no conclusions just by looking at it about the risk of
it failing if it were to fall to the ground.

[101]     On the
evidence before me, I cannot conclude that a gallon jug of acetone ought never
to be sold by placing it on a counter. A storekeeper cannot be in breach of the
standard of care anytime a gallon jug of acetone is placed on a counter. It
cannot be in breach on every occasion a jug might be inadvertently knocked off
the counter. But the evidence did not assist in drawing a line between a
counter that complies with the standard of care in negligence or under the Occupiers
Liability Act and one that does not.

[102]     I am not
persuaded that Ms. Tran has proven that a counter standing 42 inches high
and 18 inches wide is unreasonably unsafe or breaches the standard of care if
it is used for the sale of a gallon bottle of acetone. Furthermore, in my view,
Ms. Tran has failed to prove a causal connection between a counter that is
too high and narrow, the creation of the slip hazard (the failure of the jug to
contain its contents) and her injuries.

[103]     Ms. Tran
did develop some evidence at trial that the staff at Secret Nail were aware
that some items of merchandise had fallen from the counter in the past. This
evidence was argued to demonstrate that a reasonable occupier and its servants
were aware of the risk of items falling from this particular counter. Accordingly,
they ought to take care to prevent an item such as this from falling or
recognise that placing an acetone jug on the counter was not reasonably safe.

[104]     I do not
find this persuasive. The evidence did not establish that items routinely fell
from the counter. It would be most surprising if some items did not sometimes
get knocked off the counter. The counter was used to display small and light
items of merchandise for sale; principally cosmetic items that were easy to
dislodge. Occasionally these items would fall. Nothing as bulky or heavy as a
jug of acetone had, it seems, ever fallen. I have found that this jug would not
easily be dislodged or toppled without some significant force being applied to
it, unless perhaps it were placed insecurely on the edge of the counter. I
cannot find that the past history of light items occasionally falling was
sufficient to alert the owners of Secret Nail or its staff to the proposition
that it was unreasonably unsafe, therefore, to allow a jug of acetone to be
placed on the counter when it was being purchased.

[105]     I also reject
two further arguments advanced by Ms. Tran regarding safe handling
practices. The first is that the sales counter should not be used at all when
processing the sale of a jug of acetone. Ms. Tran suggests that the jug
should have been placed on the floor and not allowed to sit on the counter. While
no doubt the jug would not have fallen if it had not been on the counter, I can
see no breach of duty in allowing it to be placed there. There is no possible
way of handling the sale without there being some risk of some kind associated
with handling the product. Ms. Tran might drop it as she handed it over. A
sales clerk might drop it while ringing it in. If the jug is allowed to sit on
the floor, it simply poses a different hazard. It would then be an obstacle for
a customer to fall over. There would be no guarantee that if it were kicked the
container might not fail and its contents leak onto the floor. In my view,
there was nothing unreasonable about allowing the container to stand on the counter
while Ms. Linh Nguyen processed Ms. Tran’s purchases.

[106]     The second
argument is that the staff at Secret Nail was not specifically instructed in
handling acetone at the point of sale. Acetone is a controlled substance. It is
toxic if inhaled and it is flammable. Regulations govern how to handle it when
it is in use. But there are no regulations governing the handling of containers
of acetone at the point of sale. Ms. Linh Nguyen was aware, however, that
acetone was used to remove nail polish and was flammable. I do not accept that
instructing Ms. Nguyen, or any of the other staff, about the specific
hazardous qualities of acetone would have required any of the staff to handle
the bottles of acetone any differently from the way they did at the point of
sale. Moreover, since Ms. Tran has not established any specific negligent
act by a Secret Nail employee that caused the bottle to fall, she has not
demonstrated any causal connection between the failure to provide instruction,
even if that were required, and the accident.

[107]     In
conclusion, Ms. Tran has not discharged the onus of proving a breach of
duty in using the particular sales counter at Secret Nail, in the handling of
the jug of acetone at the point of sale or in the failure to provide adequate
instruction to the sales staff in handling jugs of acetone at the point of
sale. Moreover, she has not proven that any alleged breach of the standard of
care caused or contributed to the accident.

Conclusion and Costs

[108]     Ms. Tran
has not proven her case against the defendants. I do not accept Ms. Tran’s
version of how the slip and fall occurred and, accordingly, I do not find that Ms. Linh
Nguyen or her employer are liable for her injuries in negligence. Furthermore, Ms. Tran
has not shown that the defendant company failed to make its premises reasonably
safe or that it breached the standard of care imposed on it as an occupier. The
action is dismissed.

[109]     I conclude
that Ms. Tran suffered an unfortunate accident when she slipped on the
acetone after the jug had fallen from the counter. But it was an accident. Ms. Tran
did not suffer injuries that were caused or contributed to by any breach of
duty whether that duty sounds in negligence or under the Occupiers Liability
Act.

[110]    
Subject to written submissions to the contrary, the defendants are
entitled to their costs at Scale B.

“Harris J.”