IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130118

Docket: S090402

Registry:
Vancouver

Between:

Tanner Joseph
Bendzak

Plaintiff

And

Floyd Winston
Bohnet, Julie Christine Bohnet and Connor Bohnet

Defendants

Before:
The Honourable Mr. Justice Schultes

Oral Reasons for Judgment

1.              
Introduction

[1]            
On June 21, 2001 in Savona, British Columbia, 13‑year‑old
Tanner Bendzak was seriously injured when an aluminum irrigation pipe that he
and his friend Connor Bohnet were raising came into contact with a high voltage
power line running above a field on Connor’s property.

[2]            
This trial on liability was concerned with the question of whether
Connor’s parents, Floyd and Julie Bohnet, breached their duty to ensure that
Tanner was reasonably safe in using their premises, as is required by the Occupiers
Liability Act, R.S.B.C. 1996, c. 337.

2.              
Evidence

[3]            
The essential facts are not significantly in issue. The issue is whether
any breach of duty by the Bohnets flows from those facts.

[4]            
Like Tanner, Connor was also 13 years old at the time of the accident. Both
boys lived on ranches, which were located about 10 kilometres apart. The
Bohnets were involved in ranching and a fence building business, and the
Bendzaks ran a fishing resort, in addition to a small degree of participation
in ranching.

[5]            
The boys were good friends and engaged in a variety of activities
together. The activity that is particularly relevant to this case was hunting ground
squirrels, which are popularly known as gophers. There was evidence that at
Tanner’s property they used several methods, including pellet gun and leghold
traps, in order to eliminate the squirrels. Tanner was paid a small bounty by
his parents for each one he caught.

[6]            
These rodents are regarded as pests on rural properties. There was
evidence that they frequently take refuge in irrigation pipes.

[7]            
The day of the accident was a school day for the boys. They went on a
field trip with their class to a local First Nations band. Afterwards, Connor’s
mother picked them up and brought them to the Bohnet residence. Mr. Bohnet
was away from home that day working on a fence building job.

[8]            
The plan was for the boys to go swimming together on the property,
before heading into town for a softball or baseball game that they had
scheduled for that evening. Before the boys could go swimming, Mrs. Bohnet
reminded Connor that he had the chore to do of changing the location of the
irrigation pipes in the hay field next to the house. This field was used as
forage for animals that were kept on the ranch.

[9]            
There was some dispute in the evidence about the exact extent to which Mrs. Bohnet
may have directed Tanner, in addition to her own son, to complete this chore. Tanner
conceded in his evidence that Mrs. Bohnet was speaking to Connor in
relation to the chore and that she did not specifically ask or tell them to do
it, but his view was that if his friend had chores to be done, he should do
them too.

[10]        
Connor gave evidence that his mother did not ask Tanner to assist him
and that he did not expect Tanner to do it, but that if Tanner wanted to, that
was fine with him. Mrs. Bohnet conceded that Tanner was not forbidden to
assist, and that it is not uncommon for boys to help each other out in this
regard.

[11]        
Tanner recalled that the boys went to put on rubber boots before
beginning the task, but that he did not actually don the pair that was
available for him to use because it had a hole in one sole. Both Mrs. Bohnet
and Connor suggested in their evidence that Tanner did not wish to put on the
boots because he had a nice pair of runners of his own on, and in Mrs. Bohnet’s
case, for the additional reason that he had his good clothes on.

[12]        
These suggestions of Tanner’s basis for rejecting the rubber boots were
never put to Tanner in cross‑examination, nor did counsel for the Bohnets
seek to recall Tanner after the their evidence about it so that they could be
put to him. In the circumstances, I can give it no weight. I should say that in
any event I found it implausible, in light of the age of these boys and their
relationship with each other, that Tanner would stand on the condition of his
shoes or clothes as a reason not to participate in assisting his friend.

[13]        
Of course, Tanner’s status as a person to whom a duty is owed under the Occupiers
Liability Act does not depend on whether he was directed to assist in this
task or not, but to the extent that it affects the forseeability of risk on the
part of the Bohnets with respect to the events that were to follow. I have no
difficulty finding that Mrs. Bohnet, and indeed any reasonable person in
her position, would have envisioned Tanner at least accompanying Connor on his
task, and very likely sharing in the physical activities that it might consist
of.

[14]        
The boys then went outside to change the position of the pipes. They
took Connor’s dirt bike approximately a hundred yards to the area where they
would be working.

[15]        
The irrigation system in place consisted of aluminum pipes 3 inches in diameter,
which were available in lengths of 20, 30 and 40 feet. In the irrigation
process these pipes were to be connected to various sprinklers, (which were on
risers to keep them above the grass) and also to a hydrant that supplied the
water. The lines thus formed by these pipes had to be moved regularly, by about
a distance of 60 feet each time, to ensure irrigation to the entire field area.
This was the task that Connor was required to do. The process involved was to
drain and disconnect the pipes, carry or drag them to the next location and
then re-connect them.

[16]        
I will say more about the process of moving the pipes and how they could
be carried when I deal with Mr. Bohnet’s evidence about the training that
he had provided to Connor and his other sons.

[17]        
Tanner testified that he and Connor had been moving lines for half an
hour when he heard chirping in a pipe that he recognized as coming from a
squirrel, and also saw Connor’s dog, who had accompanied them, acting as though
a pipe had a squirrel in it. Connor recalled that when he heard the noise they
were still waiting for the water to drain so that the pipes could be moved.

[18]        
According to Tanner, this pipe that apparently contained a squirrel was “probably
a hundred feet” away. It was not part of the system that they were
disconnecting and moving. Connor testified that the pipe was within 40 or 50
feet of their position. In cross‑examination it was pointed out to him
that on his examination for discovery he testified that it was within a pipe’s
length, which he agreed would be between 20 to 40 feet in the case of the pipes
that were there.

[19]        
Both Connor and his father were clear in their evidence that the pipe
that appeared to contain the squirrel was not part of the irrigation lines that
Connor was to be moving on that day; that is, it was not part of the field’s
irrigation system at that particular time.

[20]        
The boys made a joint decision to get the gopher out of the pipe. Tanner’s
reasoning was that if an animal is left in the pipe and then dies, presumably
by drowning when the pipe is used, it creates problems by clogging up the pipe.
Connor’s view was instead that they were getting it out in order for the dog to
chase it. As I will discuss, it was Mr. Bohnet’s approach, in which Connor
had been trained, that rodents were to be flushed out of the pipes using the
water that flowed when the pipe was reattached to the line, as part of the
irrigation process.

[21]        
In any event, as I have said the boys made a decision to try to dislodge
the squirrel by raising the pipe. There was evidence that they would have been
capable of carrying the pipes horizontally by holding them at a balance point
in the middle, but that one of them alone would not be capable of standing it
up vertically. The procedure required, which indeed is the one they followed,
would be for one boy to anchor the pipe and the other to raise it.

[22]        
Connor recalled that they first tried to raise it with him anchoring,
but it was common ground in their evidence that at some point their positions
were that Tanner, who was heavier, anchored the pipe while Connor raised it. Once
the angle of the pipe got fairly steep Tanner put his ear to the opening in it
and was listening for the squirrel. It is not contested that shortly after he
started doing this the pipe touched the overhead power line — electrically
shocking both boys severely and killing the dog.

[23]        
No evidence was available about which length of pipe was being raised by
the boys when they touched the line or exactly how high the line was above the field.
Mr. Bohnet testified that a higher percentage of the pipes available were
of the 40‑foot length. Similarly, the exact location where contact was
made could not be identified with precision, but what is relevant is that it
occurred in the part of the field in which the boys had been engaged in moving
the pipes.

[24]        
Mrs. Bohnet was inside reading when this occurred. She said she
would have been able to look out if necessary to ensure Connor was “on task”. She
heard a strange sound and went out to investigate. She discovered the injured boys
and the dead dog and called for urgent medical assistance.

[25]        
The line that was contacted by the pole, which cut across the field
containing the irrigation line, was later relocated by BC Hydro when the
Bohnets built a new house on their property. There was no cost to them for the
movement of the line.

[26]        
Mr. Bohnet testified that he was never informed by BC Hydro that he
should not grow hay or engage in irrigation in the right of way underneath the
line, nor did Hydro erect any warning signs or direct him to convey in any way
the danger of the overhead lines to any user. According to him, the other
ranchers in town over whose land high voltage lines passed did not refrain from
agricultural activity beneath them either, nor did they display any warnings in
those areas. He agreed with the suggestion that he had never turned his mind to
the height of the power lines on his own property.

[27]        
Mr. Bohnet explained that Connor and his older brother were
responsible for the irrigation lines on that field. He trained them in the
proper means of removing and reinstalling the irrigation pipes to move them
across the field. Because the field is not perfectly rectangular, it changes in
length as the pipes are moved, requiring some lengths of pipe to be removed and
kept to one side for that period. Those extra pipes can then be reattached when
the irrigation process moves back the other way. He said that the pipes that
the boys lifted in this case could also have been from irrigation piping for
another field on the property.

[28]        
Mr. Bohnet indicated that any rodents that may have gone into spare
pipes are to be flushed from the lines at the time that the pipes are
reattached. Connor also testified to having been instructed by his father to
flush out rodents in this way. According to Mr. Bohnet there were never
any circumstances in which pipes were to be raised vertically, whether to
dislodge a rodent or for any other purpose, during the process of installing or
moving irrigation lines.

[29]        
He advised that, like the boys, he himself could not stand a 40‑foot
length of pipe vertically without it being anchored. The proper manner of
carrying the pipes, according to him, is to find the balance point in the
middle of a pipe and then carry it horizontally, with hands held fairly wide
apart.

[30]        
He was aware of the danger of lifting the pipes vertically in terms of
the proximity of the power line. He was also aware of the known propensity of
rodents to nest in the lines. He had no concerns about his sons moving pipes
under the power lines. He did not describe having given them any specific
instructions directed to the risk of contact between the pipes and the lines.

[31]        
There was evidence from Mr. Bhatti, an occupational safety supervisor
with WorkSafe BC, that the records of that regulatory body contain information about
two accidents involving irrigation pipes contacting overhead power lines — in
1988 and 1995. The circumstances of the 1995 accident, according to WorkSafe’s
records, were eerily similar to the present one, in that the farm worker who
was fatally injured was attempting to dislodge a squirrel by standing an
irrigation pipe vertically when he was electrocuted.

[32]        
Although there are no specific records of mailings to individual
registered employers, Mr. Bhatti was able to say that the company
operating the Bohnet ranch would have been mailed a copy of a poster that
described the circumstances of the 1995 accident by the Workers’ Compensation
Board (as WorkSafe was then named). This is because notifications were sent to all
employers in the agricultural sector, which includes ranching.

[33]        
Mr. Bohnet is the member of the household who would likely have
reviewed any such correspondence, and his company was indeed registered with
the Workers’ Compensation Board at the time that it would have been sent.

[34]        
I found his evidence somewhat evasive and unhelpful on the issue of
whether he saw this information poster about the similar 1995 accident before
or after the incident involving Tanner and his son. In his examination for
discovery he agreed that he had seen it but could not say when. He agreed in
cross‑examination that if he had seen it after the accident he would have
had somewhat of an “epiphany”, based on the similarity of the circumstances,
but that he experienced no such moment of recognition whenever he did see it. However,
he would also not accept the obvious implication of his rejection of that
proposition, which was that he must have seen the poster before the accident.

[35]        
I find that Mr. Bohnet must have seen the poster in the usual
course of receiving correspondence from the Workers’ Compensation Board, but as
I will discuss, that finding is not in itself determinative of any degree of
liability.

[36]        
Tanner had visited the Bohnet residence previously between 10 and 20
times. He had not assisted in moving irrigation pipes previously. He said that
he had assisted in building dams to raise the flow of a creek on the property
to allow water to be drawn. Connor does not recall this specific activity, but
acknowledged that he and Tanner had built lots of “little diversions”.

[37]        
Tanner had assisted in moving irrigation lines on his own property in
the presence of his father and older brother. In some cases, these irrigation
lines may have passed under power lines.

[38]        
Tanner’s knowledge of the dangers of electricity were primitive at best.
He had received an electrical safety training session somewhere between Grades
3 and 5 during which a hot dog was burned using electrical current to
demonstrate the dangers of electricity. He knew not to stick his fingers in
electrical outlets, but most significantly, he did not at the time of this
accident think that power lines of the kind that he and Connor touched with the
pipe were dangerous, unless they were downed on a road.

3.              
Discussion

[39]        
Section 3(1) of the Occupiers Liability Act requires an occupier
of premises to take that care that is reasonable in all the circumstances of
the case to see that a person on the premises will be reasonably safe in using
the premises. This duty applies to, among other considerations, the condition of
the premises and the activities on it.

[40]        
All of the necessary technical requirements for this section to apply
have been admitted. The Bohnets were certainly occupiers, and Tanner is
conceded to have been an invited guest. It was not submitted in final argument on
Tanner’s behalf that Connor should bear any liability for this accident.

[41]        
The standard of care set out in s. 3(1) is comprehensive, and it is
not necessary to refer to standards set out in general negligence cases, as
that is “likely to be more confusing than helpful in the analysis”: Weiss v.
Young Men’s Christian Association of Greater Vancouver (1979), 11
B.C.L.R. 112 (C.A.) at 118; Foley v. Imperial Oil Limited, 2011 BCCA
262, at para. 62.

[42]        
The standard of care is one of reasonableness and not perfection. The
occupier is definitely not an insurer against any possible risk of harm: Carlson
v. Canada Safeway (1983), 47 B.C.L.R. 252 (C.A.); Sulmona v. Serraglio,
[1986] B.C.J. No. 413 (C.A.).

[43]        
The duty is not to ensure that those using the premises will be
absolutely safe but to use reasonable care to prevent injury or harm from
danger that is or ought to be known: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.), aff’d, 49 B.C.L.R. (2d) 99 (C.A.).

[44]        
The test is not “whether anything could have been done to prevent the
injury using 20/20 hindsight, but rather whether the steps taken by the
occupier were reasonable in all the circumstances”: Duddle v. Vernon (City),
2004 BCCA 390 at para. 16.

[45]        
Although it is not specifically mentioned in the section, the common law
requirement of reasonable foreseeability of harm remains part of the analysis
of liability under the act: Rendall v. Ewert (1989), 38 B.C.L.R. (2d) 1
(C.A.) at 9.

[46]        
For a risk to be foreseeable it is not required that it be more likely
than not to occur or that there needs to be some particular degree of
statistical probability attaching to it. In Mustapha v. Culligan of Canada Ltd.,
2008 SCC 27, at para. 13, Chief Justice McLachlan described the correct
approach:

Much has been written on how
probable or likely a harm needs to be in order to be considered reasonably
foreseeable. The parties raise the question of whether a reasonably foreseeable
harm is one whose occurrence is probable or merely possible. In
my view, these terms are misleading. Any harm which has actually occurred is
“possible”; it is therefore clear that possibility alone does not provide a
meaningful standard for the application of reasonable foreseeability. The
degree of probability that would satisfy the reasonable foreseeability
requirement was described in The Wagon Mound (No. 2) as a “real
risk”, i.e. “one which would occur to the mind of a reasonable man in the
position of the defendan[t] . . . and which he would not brush aside as
far-fetched” (Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty.,
[1967] A.C. 617 (P.C.), at p. 643). [Emphasis in original.]

[47]        
It is also not necessary that the exact type of injury that occurred be
foreseen. As Mr. Justice Dickson explained in Assiniboine School
Division No. 3 v. Hoffer (1971), 21 D.L.R. (3d) 608 (Man. C.A.), at
page 614:

It is enough to fix liability if
one could foresee in a general way the sort of thing that happened. The extent
of the damage and its manner of incidence may not be foreseeable if physical
damage of the kind which in fact ensued is foreseeable.

[48]        
In R. v. Côté, [1976] 1 S.C.R. 595, at p. 604 Mr. Justice
Dickson elaborated on this principle:

It is not necessary that one
foresee the “precise concatenation of events”; it is enough to fix liability if
one can foresee in a general way the class or character of injury which
occurred.

[49]        
The Bohnets argue that this was in essence a freak accident, one that
arose from the boys getting "caught up in the moment" and
"failing to appreciate the danger around them." The Bohnets, it is
submitted, did everything that could reasonably be expected of them in the
circumstances.

[50]        
There was nothing from any supervisory authority suggesting or requiring
that irrigation under the power lines should not be engaged in, and it is
widely done in their area. Connor was properly trained, in their view, in how
to change the pipes safely; standing the pipes up vertically is no part of that
process. In the circumstances no reasonable person would foresee the highly
unusual act of standing the pipe upright to dislodge a squirrel, which was not
required for the task that Connor was given. A single official notice of a
related accident, which Mrs. Bohnet does not recall seeing and Mr. Bohnet
cannot put a time to, does not displace that reasonable state of mind.

[51]        
Counsel for Mr. Bendzak argues that the absence of any warning of
the dangers inherent in moving the pipes unsafely in this location or of any
instruction about how to do it safely and, more broadly, the failure to remedy
the overall dangerous situation created by this activity going on in close
proximity to the power lines means that the Bohnets breached their duty to
Tanner to keep him reasonably safe on their premises.

[52]        
It is argued that, despite the Bohnets’ awareness of a high voltage line
across their field, of the propensity of gophers to nest in irrigation pipes
beneath it, and of the boys’ enthusiasm for gopher hunting, Tanner was still permitted
into this area. It was not roped off or otherwise isolated and was not subject
to warning signs. Nor did the Bohnets, knowing of this dangerous proximity,
make any request to have the line moved, something that was apparently done
without difficulty when they later requested it incidentally to their new home
construction.

[53]        
In light of such factors, Mr. Bendzak’s counsel takes the position
that the accident was an entirely foreseeable and preventable act and that it represents
a clear breach of the Bohnets’ duty under the legislation.

[54]        
In my view, this case will turn on the question of the foreseeability of
the risk of harm. It is clear to me from all of the evidence that the accident
that occurred was a risk the Bohnets had not actively put their minds to. The
irrigation of the field below the power lines and the movement of irrigation
pipes along it seem to have been carried out without any specific concern for
the possibility and danger of contact between the pipes and the lines.

[55]        
Connor was certainly trained in the operation of the line, including how
to move the pipes, but the specific risk of standing the pipes vertically,
either in that process or for some other reason, does not appear to have been
adverted to by anyone in the Bohnet family, including in Connor’s instructions.
I infer that this was because standing them up is unnecessary for any purpose
related to the movement of pipes for irrigation, including removing rodents.

[56]        
Things proceeded uneventfully until this accident, with Connor carrying
out the chore requested, with his mother and father apparently having
confidence that this was a safe activity if carried out in the manner that he
had been instructed.

[57]        
While it is clear that they did not advert to this risk, the real issue
is whether they should have foreseen the realistic risk of such a serious
accident occurring and taken steps to prevent it, specifically, as suggested by
counsel, by warning and/or supervising Tanner when he was assisting Connor or,
more fundamentally, preventing the situation from arising at all by isolating
the area or having the line moved.

[58]        
I take the Bohnets’ points that the irrigation under power lines was
common in the area and that no efforts to prevent it or to require warnings
were undertaken by BC Hydro. It also seems, based on the records of WorkSafeBC,
to have been a relatively infrequent type of accident.

[59]        
What I consider to be the critical factors, however, are the particular
circumstances under which Tanner was injured, and not the general practice as
applicable to irrigation under power lines in this area.

[60]        
Firstly, one must consider the physical setting. Accepting that the
usual and proper manner of moving irrigation pipes is horizontally carrying
them, and that there is never any reason to stand it vertically during that
process, this was still an area fraught with potential peril. Metal pipes of a
sufficient length to touch the high voltage line if stood up vertically were
strewn about. All that prevented a potentially fatal contact between them were
whatever best practices may have been inculcated in Connor in his instructions
about moving irrigation pipes, which did not include specific training about
this risk. In other words, this was a potentially perilous zone, awaiting only
the easily achievable, if completely unnecessary, action of standing up an
irrigation pipe to be taken for serious harm to occur.

[61]        
Second, one must consider the characteristics of those who were allowed
to go into this dangerous physical setting. Although they had both turned 13,
these were Grade 7 boys — children by any reasonable description — whose
propensity for using objects in every way other than that which they are
intended is an intrinsic attribute of childhood. I do not think it is actually
necessary to go so far as to find the Bohnets ought to have foreseen that the
boys would gopher hunt by tipping up a pipe, although that is certainly within
the reasonable range of activities that they might get up to. It is, rather,
that with a highly dangerous power source 40 feet or less above them, with a
means of making contact ready at hand, the Bohnets depended only on Connor’s
remaining within the four corners of the chore itself to keep him and Tanner
safe, despite the self‑evident immaturity and unpredictability that are
attributes of children of that age.

[62]        
I think that represents a real risk, one that a reasonable person would
regard as anything but farfetched. It is an example of a possibility of serious
harm, one that would occur to the mind of a reasonable person. Its relative
frequency as an accident in commercial agriculture does not speak to the
dangers posed by the activity being carried out by children. The specialized
danger to children inherent in this situation means lack of attention by Mr. Bohnet
to the Workers’ Compensation poster, directed to him in his capacity as an
employer, is not particularly significant either.

[63]        
My conclusion is that unsupervised children left in possession of
objects capable of inflicting serious harm on themselves if they engage in quite
typical childish behaviour should be seen by any reasonable person as a
significant risk of harm. Simply, these boys were put in a situation in which
their safety depended entirely on Connor doing only that which he had been
entrusted and told to do, and not behaving as children.

4.              
Conclusion

[64]        
For these reasons I conclude that Mr. and Mrs. Bohnet failed
in their duty to keep Tanner reasonably safe in all the circumstances and
breached their duty to him under the Occupiers Liability Act.

[65]        
As between them, I would find that they are equally at fault for the
accident. Mr. Bohnet appears to have been the principal supervisor and
instructor of the maintenance of the irrigation system, with its deficient
attention to the electrical safety of children using it, but Mrs. Bohnet
was the person who left the boys to enter the field on their own on that
occasion.

[66]        
I would not find Tanner at fault in any respect in the accident. As was the
case with Connor, his failure to consider his own safety when embarking on an
impulsive but typical youthful activity was appropriate for his age,
intelligence and maturity.

[67]        
Unless there are other matters that would affect costs, the plaintiff
will be entitled to receive his costs of this trial.

The
Honourable Mr. Justice T.A. Schultes