IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131120

Docket: 33791

Registry:
Penticton

Between:

Marlene Christina
MacKandy-Gray

Plaintiff

And

London Drugs
Limited

Defendant

Before:
Associate Chief Justice Cullen

Reasons for Judgment

[1]            
The plaintiff in this action, Marlene MacKandy-Gray, seeks a finding of liability
and damages against the defendant, London Drugs Limited, for injuries she
sustained when she fell in the London Drugs store premises located in the Spall
Plaza at 400 – 1950 Harvey Avenue in Kelowna, British Columbia.  The incident
took place around 11:00 a.m. on December 26, 2008.

[2]            
The plaintiff’s action is premised on section 3 of the Occupiers Liability
Act, R.S.B.C. 1996, c. 337.  The plaintiff contends that she slipped,
causing her to then trip and fall, when she entered the store premises because
of the wet and slippery condition of the entrance way floor and the absence of
any warning of those unsafe conditions.

[3]            
The defendant’s position is that it has no liability for the injuries
sustained by the plaintiff when she fell because her fall was not the result of
her slipping and then tripping.  Rather, the defendant contends that the fall was
the result of the plaintiff simply tripping on a floor mat which the
defendant’s employees had placed at the store entrance to prevent wet and
slippery conditions arising by people tracking in snow from the outside.

[4]            
In the alternative, the defendant submits that the plaintiff’s injuries
and consequent damages are substantially less than she claims.  The defendant
asserts that many of the plaintiff’s complaints relate to a pre-existing
condition and were not caused by her fall.

The Plaintiff’s Case on Liability

[5]            
The plaintiff’s case was based on (1) two video surveillance recordings
of the incident, (2) her evidence, (3) her daughter’s evidence, and (4) the
evidence of Dr. Naude, an orthopaedic surgeon, who treated the plaintiff
and was qualified as an expert witness in relation to bone and joint issues,
injuries, and pre-existing conditions.

[6]            
Each video depicts a different view of the incident.  The first video
depicts the entrance way and area where Ms. MacKandy-Gray fell from inside the
store looking directly back towards the entrance.  This video shows the
incident with some clarity, although not at the same pace as would be revealed
to the human eye.

[7]            
The second video depicts a view looking toward Ms. MacKandy-Gray’s left
side.  It is from some distance away, has a significant time lapse between
frames, and is, as a result, significantly less definitive than the first video.

[8]            
The plaintiff was born on December 11, 1942, and was 66 years old at the
time of the fall.  She retired as a cook when she was 64.  Her post-retirement
income from her old age pension is about $1,400 per month.  She is a widow.

[9]            
At the time of the incident, the plaintiff was living in Olalla, British
Columbia, in a three bedroom trailer in a trailer court.  Her daughter, Diane Elliott,
lived in Kelowna with her two children, Chelsea and Parker.  The plaintiff was
staying with her daughter and grandchildren over the Christmas season that year.

[10]        
On December 26, 2008, the plaintiff went to the shopping mall in which
the London Drugs store was located.  She took her grandchildren to an adjacent
toy store and then went by herself to London Drugs to get some Tylenol for her
daughter and some cigarettes for herself.  She testified she “walked into
London Drugs. [She] slipped and tripped on the rug and fell face first.”

[11]        
The plaintiff testified as to the mechanism of the fall.  She described
the fall as involving her slipping as she walked into the store and catching
the rug on her way down.  Specifically, she said her left leg slipped when she
went to go around a person who was standing in front of her on the right side
of a floor mat just inside the store entrance.  She testified her left foot
“slipped a little”, she “took a step, hit the rug and tripped”.

[12]        
The plaintiff described the day as sunny but there was snow on the
ground.  The sidewalk had been shovelled but not the parking lot.  She was
wearing hiking-type boots which she had had for a while and had no issues “with
traction” while wearing them.

[13]        
The plaintiff had to pass through two doors to go inside the store and
there was a grate between the doors.  As she walked through, she noticed the
tile flooring was wet and she could see track marks.  There was a mat there as
well and there was tile between the mat and the door.  She said the floor was
wet, although not completely, but she didn’t think it was slippery.  She did
not notice any warning signs regarding the condition of the floor.  The store
was very busy that day.  She testified that if there had been a warning sign
she would have paid more attention “but there were none”.  She was walking
normally and thought she was being safe.

[14]        
After the fall, the plaintiff “was sort of stunned”.  She did not lose consciousness
but felt “woozy”.  Her knees, neck, and shoulders hurt.

[15]        
After the plaintiff fell, she was helped up by London Drugs employees
and put in a chair.  She later moved to another chair until an ambulance came. 
Before that, she noticed someone come to the front, mop up the floor, and put a
sign up warning of wet or slippery floors.  The sign had been in a corner about
15 feet away; it could not be seen by those entering the store.  During this
time she noticed only one mop-up after her fall.

[16]        
In cross-examination the plaintiff agreed that she had been in the
London Drugs store about 20 times previously, “probably” in winter, and had never
before found it unsafe.  She had also previously lived in Edmonton and was
familiar with Canadian winters.  She had seen floor mats before in shopping
malls, banks, and other commercial premises and agreed it was something she
would expect to see to reduce the risk of slipping.  The mat at the London
Drugs store appeared to be a standard rubber mat.  She agreed that given the
conditions it was important to have the mats out and that there was nothing
unsafe about having them on the floor.

[17]        
Although the plaintiff had been in that London Drugs store before, the
layout had changed since she was last there.  She agreed that when she came
into the store she looked from left to right because everything had changed.  She
also agreed that as she entered her attention was focused to the left in the
direction of the counter where she would purchase cigarettes.  She agreed that she
caught the mat edge with her right foot while her left foot was on the floor,
but she did not agree that her left foot was “planted”.  She specifically recalled
slipping.

[18]        
The plaintiff was asked if she recalled telling her doctor after the
incident that she “tripped” rather than slipped.  She did not recall doing this
but asserted that she was sure that she had slipped and then tripped.  She specifically
recalled that her left leg slipped, then she went forward and caught the rug
with her right leg.  She testified that, in her opinion, that is what the video
depicts.

[19]        
The plaintiff acknowledged that she has had additional falls since the
incident.  On one occasion her knee locked while at a friend’s place but her
friend grabbed her before she fell.  On another occasion, she was standing on a
stool and fell off the stool when her right knee locked.  That was in October
2009 before she had knee surgery.  On a further occasion she fell in her
driveway when she slipped on some ice.

[20]        
The plaintiff agreed she had been dizzy the morning before she fell.  However,
she said this was simply because she had not had a cigarette for a while.  She also
agreed she had dizziness again after she fell when she felt woozy.  However, she
denied having to hold on to the kitchen counter to avoid falling the previous
evening while cooking dinner.  She also denied that her grandchildren told the
London Drugs employees she was experiencing spells of dizziness but she agreed that
her granddaughter told a London Drugs employee that she had been dizzy that
morning.

[21]        
The plaintiff’s daughter, Ms. Elliott, testified.  At the time of the
fall, her mother was staying with her and her family in Kelowna.  She went to the
London Drugs after the incident occurred.  She recalled her mother getting
dizzy that morning after she smoked but said it was over quickly.  She did not
remember it as a problem which her mother had.  In cross-examination, she said
she heard about the dizzy spell from her daughter.  She agreed that in 2006 her
mother had had problems with pain in her knees but after vascular surgery later
that year those problems had cleared up.

[22]        
The plaintiff also called Dr. Naude on the issue of her injuries.  I do
not find this evidence relevant to the question of liability.

The Defendant’s Case on Liability

[23]        
The defendant’s case was based on evidence from (1) Ben Pullein, the
present London Drugs store manager, who testified as to store policy and
practices relating to customer safety; (2) Shannon Hubick, who was the sales
supervisor at the time of the incident and who dealt with the plaintiff; (3) Maury
McCausland, who was the London Drugs Retail Operations Administrator that
oversaw the sweep log program at head office; and (4) Dr. O’Farrell, who
addressed the issue of the plaintiff’s injuries.  The defendant also tendered a
report titled “Injury Biomechanics Report” from Gunter P. Siegmund, PhD,
PEng.

[24]        
Ms. Hubick testified that on December 26, 2008 she was working at the
store and went to the store front when she received a call from a cashier.  When
she got there she noticed the plaintiff sitting on a chair near the cashier.  She
asked the plaintiff if she was okay and the plaintiff replied that she had
slipped and fallen.  Ms. Hubick said the plaintiff appeared agitated and told
Ms. Hubick that she was at the shopping centre with her grandchildren.  Ms.
Hubick said the plaintiff then got up and moved a few feet away to sit down out
of the heavy flow of customers.  The plaintiff told Ms. Hubick that she had not
been feeling well the day before and had to hold onto a counter to steady
herself while cooking.  The plaintiff also told Ms. Hubick that she had
had dizzy spells.  The plaintiff asked Ms. Hubick to call her daughter.  As Ms. Elliott
was uncertain whether she could get to the store Ms. Hubick called an
ambulance.  While they were waiting for the ambulance, the plaintiff’s
grandchildren arrived and Ms. Hubick conversed with them.

[25]        
At about 11:50 a.m. Ms. Hubick filled out a London Drugs form titled
“Customer Injury or Property Damage Report” in respect of the plaintiff’s fall
(the “Accident Report”).  Against the direction “Describe the accident and the
extent of the injuries or damage”, she wrote “Slipped entering the store, fell
onto both knees; both knees red, left one starting to develop a bump.  Later
complained of neck pain, right side of back of neck.”  In a section marked
“Skid marks on floor”, she noted “floor wet”.  In a section marked “Physical condition
of floor”, she noted “wet, slushy”.  In answer to the question on the form
“What, in your opinion, was the cause of the accident”, she wrote “Not being
aware of the wet floor conditions”.

[26]        
In a section marked “Any evidence of previous injuries”, she wrote
“Grandchildren told of dizzy spell yesterday”.

[27]        
Ms. Hubick testified that when she glanced over at the floor she noted
that some snow had been tracked in but that there was no spill on the floor. 
She noted four floor mats at the front door which was normal.  She testified that
the mats were placed there just before the store opened at 9:00 a.m.  She said
her note on the Accident Report about a “wet, slushy” floor was based on what
the plaintiff told her and when she looked over she could see that some snow
had been tracked in.  Although she testified that the plaintiff told her about
being dizzy the day before, she agreed that she did not note this on the Accident
Report.  Rather, she wrote down what the grandchildren told her.  In cross
examination, she also agreed the plaintiff was shaken and upset and had chest
pain, which was why she called the ambulance, but that she made no note of the
chest pain on the Accident Report.

[28]        
Ms. Hubick testified that she wrote her description of how the accident
occurred based on what the plaintiff told her.  She believed that was how she
was required to fill out the form. In cross examination, she agreed that she filled
out the Accident Report to the best of her ability but with information that
was given to her.  She knew it was important to be accurate and forthright and
that the Accident Report could be used for future litigation.

[29]        
In cross-examination, Ms. Hubick agreed safety concerns in the front
door area were one of her responsibilities.  She was also responsible for up to
50 staff that day.

[30]        
Ms. Hubick agreed that if there was a spill on the floor of anything
larger than a coffee cup, a sign would be put up to warn customers.  There were
wet floor signs handy near the front of the store.  However, they were not up
at the time of the plaintiff’s fall.  She was also aware that after the
plaintiff’s fall the floor was mopped and a wet floor sign was put up.

[31]        
Ms. Hubick was aware of the store policy regarding signage when floors
are wet and she had seen the London Drugs policy document relating to spills
which distinguished between small, medium, and large spills.  She agreed that
if a spill was medium or large then a sign should be put out.

[32]        
Ms. Hubick testified the signs were not put up before the fall because
there was not a medium or large content of water.  She couldn’t say how often the
front of the store was mopped that day or even if it was more than once.  She
could also not recall if she saw the mats being changed that day.

[33]        
On the Accident Report she noted the last sweep of the front area was at
9:00 a.m.  She said that she had seen that time on the sweep logs that
morning.  She was then shown a sweep log from the store which had pre-set times
on it.  The pre-set times did not include 9:00 a.m.  She then said “It had been
signed off at 8 – she wrote” – she wrote 9 on the report “It would have said 8
if the same document was used.”  She said the store opened at 8:55.

[34]        
Ms. Hubick drew the conclusion that the plaintiff fell because she was
“unaware of wet floor conditions”.  She agreed that if a wet floor sign had
been up, it would have assisted people entering the store to understand that
there was a wet floor.  She said, however, that signs were primarily used for spills.

[35]        
The defendant called evidence about the policies and practices which
were in place at London Drugs premises to ensure that they were consistently neat,
clean, free of obstruction or hazards, and, in addition, that the front areas
(“landing zones”) were open and inviting.

[36]        
Mr. Pullein testified that Boxing Day is very busy and the store could
receive up to 6,000 customers.  As a result, they would have 50 staff members
and four members of management working.  All staff members were required to
take care of any hazards in the store on days like this.

[37]        
Mr. Pullein testified that the store had a practice of conducting store patrols
and sweeps three times a day and that the employees responsible kept a sweep
log to record the sweeps.  He testified that it was important that the sweeps
be done regularly.

[38]        
The daily sweep logs provided for three sweeps a day, seven days a
week.  The sweep times designated on the logs were 8:00 a.m., 1:30 p.m. and
6:00 p.m.  Next to each sweep time there was a space for both the sweeper and a
management representative to initial.  Mr. Pullein expressed the view that if
there were gaps in the sweep logs it was likely a recording error, rather than
a failure to conduct the sweeps.

[39]        
Mr. Pullein testified that on Sunday or Monday morning, the sweep logs
for the week would be collected and sent by interoffice courier to the head
office.  At the time of the plaintiff’s fall, London Drugs stores did not
retain a copy of the sweep logs on site.  In cross-examination, he testified
that the stores now keep copies of the logs they send to the head office.  He
was not aware of any documentary evidence of any sweeps done on December 26,
2008.

[40]        
In cross-examination, Mr. Pullein agreed the landing zone was the most
important area in the store to be careful of and kept clean, tidy and
particularly safe.  He agreed that the entrance or landing zone area had the
most traffic in the store. He testified the three sweep practice did not change
depending on the weather.  He agreed that some of the seven weeks of sweep logs
which were produced and given to the plaintiff were not signed.  He
acknowledged a failure to sign could reflect a failure to sweep but that he
could not be certain that is what happened.

[41]        
As to the floor mats, Mr. Pullein testified the practice was to put them
on the floor “whenever circumstances dictated” to pick up moisture from
customers’ shoes.  They were a thick rubber non-stick material on the bottom
with carpet on the top and were delivered to the store clean two to three times
a week.  There were always quite a few on hand at any given time.  Mr. Pullein
testified that store employees were always looking at the mats to ensure they
were in good order and not too wet.  Depending on weather, the mats would be
changed up to five or six times a day.  Typically, two mats would be used at
the front entrance if it was snowy outside but only one if it was raining. 
They would be careful not to use a defective mat.

[42]        
In cross examination, Mr. Pullein testified that although floor mats are
used to collect moisture they do not cover the entire entrance area which is
tiled floor and a grate.  He agreed that water could collect on the tile.

[43]        
As to the wet floor signs, Mr. Pullein testified that they were used
whenever there was a hazard such as an unexpected spill on the floor.  He
indicated it would be up to the store employee who encountered the spill to put
up the signs and deal with the spill.  He said he would not use the signs if it
was raining or snowy and customers were tracking wetness onto the floor of the
store.  He would use mats for that condition and considered that to be
reasonable.

[44]        
In cross-examination, Mr. Pullein agreed that if there was a lot of
water on the floor, signs should be put up and it would be taken care of right
away.  The signs would stay up if mopping of the floor created further wetness.

[45]        
Mr. Pullein agreed it would take only seconds to put up a wet floor sign
and there were several kept at the front.  He agreed that a wet floor sign was
not up when the plaintiff fell and that there was a “small amount of wet
consistent with the weather conditions”.  He was aware that after the fall, the
wet floor sign was put up and the floor was mopped.  He was asked if he would
infer from that that the state of the floor fell into the medium or large spill
policy, but he said it could be that the store employees were reacting to the
fall and the injury.  He testified that after looking at the video he did not
see anything hazardous that led to the injury and no changes to store practice
or policy were made either by tasking someone specific with mopping the landing
zone or in relation to the use of wet floor signs.

[46]        
Mr. McCausland is the Retail Operations Administrator for London Drugs
at its head office in Richmond.  His general responsibilities include giving
support to the stores, establishing and ensuring compliance with policies, and
collecting and maintaining sweep log records.  His job in relation to the sweep
logs is to ensure they are filled out and then he sends them to the London
Drugs Information Technology Department for scanning and logging.

[47]        
He testified that in 2008 there were 70 London Drugs stores in British
Columbia and they all sent him their sweep logs weekly.  There was also a
change of practice in 2008 when the sweep logs were then also sent to the
“electronic side” of the operation.

[48]        
He testified he had no issues with the receipt of sweep logs from the
Kelowna store, but became aware that some of the sweep logs from that store were
missing.  London Drugs employees looked for the missing logs but were unable to
locate them.  The missing logs included those for the week in which the
plaintiff fell.  Mr. McCausland agreed the logs were not all properly
filled out.  He speculated the employees may have missed signing off when they
did the sweeps, acknowledging that if they did so it was on a “fairly
consistent basis”.

[49]        
Dr. Siegmund is a mechanical and biomechanical engineer who viewed the
videos and provided an opinion based on what he described as “slip and trip
biomechanics” as to whether the plaintiff slipped and then tripped, or simply
tripped on the mat and fell.  In his report, Dr. Siegmund describes the
mechanics of those different biomechanical actions, that is, what one would
expect to see in a slip, a trip, or a slip and trip combination.  His report
then analyzes what he saw on the videos in relation to his description of those
biomechanical actions.

[50]        
After describing what he saw in the videos, Dr. Siegmund describes “slip
and trip biomechanics” in Part 5.3 of his report as follows:

5.3 Slip and Trip
Biomechanics

During walking, each leg
alternates between two phases; stance and swing (see top line of Figure 5)
(Sutherland et aI., 1994). During stance, the foot is in contact with the
ground, whereas during swing the foot is advancing to the next location where
stance reoccurs. The swing phase of one leg occurs while the other leg is in
its stance phase. Since the stance phase is longer than the swing phase, there
are two periods during each gait cycle when both feet are on the ground. These
are called double support periods.

Slips occur when there is
insufficient friction between the shoe and floor to resist the horizontal
forces at the shoe/floor interface. The highest friction demands during walking
occur at heel strike (the start of the stance phase) and at toe-off (or push
off, the end of the stance phase). As a result, slips on horizontal surfaces
almost always occur at either heel strike or toe-off.

Heel slips cause the leading
limb to slide forward. If the slip is short, the subject can recover and
continue walking. If the slip is long, the leading limb slides out from under
the subjects and they typically descend into a lunge-like posture or fall
backwards. Toe slips cause the trailing limb to slide backwards.  Toe slips are
more common and considerably less dangerous than heel slips.  If the toe slip
is large, the subject also enters a lunge-like posture and slows before
falling.

Trips
occur when the forward motion of the swing leg is interrupted. When suddenly
stopped or slowed, the swing leg cannot reach its next intended stance
location. As a result, the center of gravity of the body gets ahead of the foot
and the subject begins to fall forward. If the swing foot can be planted near
its next intended stance location, then the subject may be able to recover by
quickly bringing the opposite leg forward once the tripped leg has planted.
Alternatively, if the swing foot is stopped, the subject will fall immediately
forward. Between these two extremes, a subject may be able to take one or two
steps forward following the trip, but their feet cannot catch up with their
body’s center of mass. In these cases, the subject stumbles forward and then
falls. In both latter cases, subjects typically extend their arms to help
arrest their forward fall.

[51]        
Dr. Siegmund’s opinion was that the plaintiff tripped rather than
slipped or slipped and tripped. He based this opinion on three features of her
fall:

1.       her left foot was planted;

2.       she was swinging her rear foot forward when
it was interrupted by a floor mat; and

3.       she
fell forward with her arms extended ahead of her.

[52]        
He concluded at paragraph 6.0 of his report as follows:

6.0
CONCLUSIONS

1)       There did not appear to be any folds, bumps,
or irregularities in the leading edge of the mat closest to Ms. MacKandy-Gray
before she fell.

2)       Ms.
MacKandy-Gray’s fall mechanics indicate that she tripped on the leading edge of
the first mat. Her right leg was in swing phase and its forward motion was
interrupted when it caught the leading edge of the floor mat.

[53]        
It is, of course, not Dr. Siegmund’s analysis of the videos which is
determinative of what they depict.  Rather, I must determine what happened when
the plaintiff fell based on my review of the videos along with all the other
evidence which I have heard and seen.

The Plaintiff’s Position on Liability

[54]        
The plaintiff contends that the issue of liability is fairly straight
forward because of the video footage, insofar as it depicts the scene and the
condition of the store.  The plaintiff says that the video depiction of the
actual fall mechanics is affected by the fact that the video is not “real-time”
and does not capture everything that the human eye would see.

[55]        
The plaintiff concedes that the defendant, although unquestionably an
occupier of the store, was not an insurer in relation to the plaintiff.  As
such, the defendant was only required to meet the standard set out in Waldick
v. Malcolm, [1991] 2 S.C.R. 456 at p. 472:

…That duty is to take reasonable
care in the circumstances to make the premises safe.  That duty does not change
but the factors which are relevant to an assessment of what constitutes
reasonable care in the circumstances will necessarily be very specific to each
fact situation — thus the proviso "such care as in all the
circumstances of the case is reasonable”. … [Emphasis in original.]

[56]        
The plaintiff cites Coulson v. Canada Safeway Limited (1988), 32
B.C.L.R. (2d) 212, [1989] 2 W.W.R. 264 (C.A.), for the proposition that an
occupier must have a reasonable system of inspection in place for the premises.
In that case the defendant did not establish that a reasonable system of
inspection was in place because of a lack of evidence from its employees that
they inspected the area in question.

[57]        
The plaintiff says the same circumstances exist in this case, as the
only employee working that day who was called as a witness was Ms. Hubick and
she did not observe the front area of the store until after the fall.  As such,
the plaintiff says there is no evidence that there were any sweeps of the floor
done that day, as Ms. Hubick’s explanation for her notation on the Accident
Report is suspect because the sweep logs do not provide for the 9:00 a.m. sweep
which she says happened.

[58]        
The plaintiff says that even if the three sweep policy was adhered to,
it was not reasonable in the circumstances, given the weather conditions and
the large number of customers entering the store on Boxing Day.

[59]        
The plaintiff argues that there is no evidence the defendant took any
steps to “address the water and slush conditions at the front door” and that no
one was tasked to do so.  There is no evidence that the mats in use had been
swapped if they were soiled and wet and there is no evidence whether the floor
under the mats was mopped when and if the mats were exchanged.

[60]        
The plaintiff contends that in the front area of the store there was
sufficient wetness to merit the use of a wet floor sign in accordance with
store policy for any spill larger than the contents of a coffee cup.

[61]        
The plaintiff submits that the video depicts the floor to be wet in the
“landing zone”, corresponding to Ms. Hubick’s evidence, and that seven to eight
minutes after the plaintiff’s fall it also depicts some London Drugs employees
putting up a wet floor sign and mopping up the area.

[62]        
The plaintiff says that if there had been a reasonable system of
inspection in place, the area would have already been cleaned or wet floor signs
used to warn patrons, and the plaintiff’s fall would have been prevented.

[63]        
In sum, the plaintiff says that the evidence establishes the defendant’s
failure “to take reasonable care in the circumstances to make the premises
safe”.  The plaintiff submits there is no compelling evidence that the premises
were in fact reasonably safe, or that the defendant did anything to ensure that
they were.

[64]        
As to the missing sweep logs, the plaintiff submits that the Court can
and should draw an adverse inference from the defendant’s “failure to preserve
or produce reliable evidence of whether floors sweeps were actually
undertaken”.  The plaintiff relies on Pfiefer v. Westfair Foods Ltd., 2004
ABCA 422. 361 A.R. 261 for this submission.

[65]        
The plaintiff further submits there is no basis for any finding of
contributory negligence.  The plaintiff was sober, wearing appropriate
footwear, and walked into the store looking around her to get her bearings when
she slipped on the slushy entrance way and then tripped on the mat, falling and
injuring herself.  The plaintiff says her evidence is consistent with both the
surrounding evidence and the Accident Report prepared by Ms. Hubick, which
asserts the plaintiff slipped because she was not aware of the wet floor.  The
plaintiff testified she was aware the floor was wet but did not think it was
slippery.  She further testified that had there been a wet floor sign alerting
her to the hazard she would have been more vigilant.

[66]        
The plaintiff also submits that the mat was wet underneath which made it
more likely to flip up and that this “likely contributed to the plaintiff’s
fall”.

The Defendant’s Position on Liability

[67]        
The defendant submits this is a case that enforces the principle that
the occupier of the premises is not an insurer and the applicable standard of
care is not perfection.  The defendant says the evidence demonstrates that the
defendant took reasonable steps to ensure that persons using the premises were
reasonably safe.

[68]        
The defendant says the evidence, and in particular the video evidence, shows that the plaintiff simply
tripped on a floor mat; she did not slip on water.  She knew that the floor was
wet and expected there to be floor mats as a result.  The defendant says the
plaintiff was not looking where she was going, had been dizzy earlier in the
day, was dizzy after the fall, had a history of falls, and was not wearing her
prescription glasses.  The defendant emphasizes that there is nothing unusual
about the floor mat’s position and that the video confirms that the plaintiff
did not slip before she tripped.  The defendant submits that the plaintiff’s
left foot was firmly planted before she took the step with which she
encountered the mat.

[69]        
The defendant contends
that it took reasonable steps to ensure the front entrance was safe by placing
a series of floor mats in this high traffic area.  The defendant submits that the
video evidence, along with the expert opinion of Dr. Siegmund, establishes
that the plaintiff did not slip.  Rather she simply tripped over the floor mat
which had no visible irregularities.  The defendant submits that the Court can also
infer from the circumstances that dizziness may have been a factor in the
trip. 

[70]        
The defendant submits the
evidence establishes that London Drugs ensured a reasonable level of safety in
the front area of the store.  In support, the defendant relies on Mr. Pullein’s
evidence regarding the store practices in place at the time of the fall,
including the monitoring of the front entrance area, the three times daily
sweeps, the exchange of the floor mats, and the tasking of all employees with
monitoring the condition of the store.

[71]        
The defendant also cites
Mr. Pullein’s evidence as to the use of wet floor signs in the event of a spill
to argue that there was no spill in this case and thus no need to use a wet
floor sign.  In any event, the defendant says that the lack of a wet floor sign
is irrelevant because the plaintiff did not slip.

[72]        
The defendant submits
that the Court should resist drawing any adverse inference in this case because
of Mr. McCausland’s evidence to the effect that the missing sweep logs were
likely lost in the process of sending them for scanning.

[73]        
The defendant cites Chura
v. Peter Ballantyne Land Holdings Co. Inc., 2005 SKQB 423, as an analogous
decision that offers helpful guidance in deciding this case.  That case
involved video evidence of an incident where the plaintiff tripped on a floor
mat which was lying flat and “was not bunched flipped back or twisted in any
fashion” (para. 3).  In the result, the court found no liability as neither the
floor mat or any failure by the occupier to take reasonable care caused the
incident.

Discussion and Conclusion Regarding Liability

[74]        
I watched both of the videos many times.  The video from a camera to the
plaintiff’s left was very short and caught only two frames in which the
plaintiff entered the store, encountered the mat, and fell.  I did not find it
very helpful.

[75]        
The video of her entrance and fall taken from in front of her is more
revealing.  I am unable to reconcile what is depicted in that video with Ms.
MacKandy-Gray’s assertion that her left foot slipped, causing her to trip on
the mat and fall forward to the ground.

[76]        
What the video portrays is the plaintiff coming into the store, looking
to her right, and then to her left as she walked through the entrance.  The
floor is tiled.  There is a grate just inside the entrance door and in front of
the grate going further into the store, there is a mat on the floor.  Between
the grate and the mat, there is bare tile which appears wet from moisture
tracked in by customers.  As the plaintiff approached the mat, she moved
slightly to her left to go around a man who was standing on the right side of
the mat (from the plaintiff’s perspective).  The plaintiff stepped on the bare
tiles just in front of the left side of the mat (from her perspective) and
brought her right foot forward to step on the mat.  As she brought her right
foot forward, she caught the front or leading edge of the mat with her toe, and
it flipped up on the right side (from the plaintiff’s perspective).  The
plaintiff began to fall and, in doing so, got her right foot down onto the mat
and brought her left foot forward and placed it on the mat in front of her
right foot.  Despite this, she was unable to stop her forward momentum and fell
to the ground.

[77]        
I watched the video a number of times, sometimes watching it through and
sometimes watching it frame by frame or in stop motion.  I was unable to detect
any indication that Ms. MacKandy-Gray’s left foot slipped at any time during
the sequence of events.  Her movements did not conform with what Dr. Siegmund
described would occur if there was a slip at “heel strike” or “toe off”.  In
other words, there is no indication that the plaintiff’s left foot slid forward
(heel strike) or slid backward (toe off).  The plaintiff appeared stable at all
times until her right foot or toe encountered the edge of the mat and she
lunged forward.

[78]        
I do not question the plaintiff’s honesty in describing what she
experienced. However, the events happened very quickly, she was in some shock
after falling, and whether she slipped or tripped would not assume much
significance for her at the time.  Therefore, I find that her version of events
is mistaken.

[79]        
As far as the reaction of the London Drugs employees is concerned,
including Ms. Hubick, the aftermath of the incident left no evidence of how the
plaintiff fell because a customer who followed her into the store restored the
mat to its original position lying flat on the tile floor in front of the
grate.

With the mat restored to its original position, it would
have appeared quite plausible that the plaintiff had slipped on the wet floor.  This
may have led to a perceived need to mop the area and place the wet floor signs
in the vicinity of the fall.

[80]        
However, as I have already found, the plaintiff did not slip on the wet
floor. Rather, her fall was caused by tripping on the mat which was placed at
the entrance to the store to absorb moisture tracked in by customers.  There is
no evidence that the mat in any way posed a tripping risk at any time prior to
Ms. MacKandy-Gray’s fall.  Therefore, the question of liability stands or
falls on whether the plaintiff fell because of conditions created by a failure
of the defendant to take reasonable care to make the premises safe.

[81]        
The critical subsections of the Occupiers Liability Act are ss.
3(1) and (2), which read as follows:

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

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

(a) condition of the premises,

(b) activities on the premises, or

(c) conduct of third parties on the premises.

[82]        
It is evident from the case law, and counsel agrees, that an occupier
under the Occupiers Liability Act is not an insurer.  As Wong J. put it
in Bjerregaard v. Westfair Foods Ltd., 2003 BCSC 1755 at para. 46:

[46]      However, an occupier is
not an insurer.  Persons coming on to its premises also have a duty to take
care for their own safety.  Every misadventure in life cannot be blamed on
someone else.  Occasionally, we all fail to look where we are going.  Sometimes
we just stumble.  Other times we fall.  Unfortunately, that is what happened
here.  The plaintiff did not take care to notice the grape on the floor when
moving about the produce section.

[83]        
As I see it, the critical issue in this case is causation.

[84]        
The plaintiff submits that her fall was occasioned by the defendant’s
want of reasonable care in keeping the premises safe.  Evidence of a lack of
reasonable care on the defendant’s part arguably includes the defendant’s
failure to produce the relevant sweep logs, the post-fall mopping of the floor
area where the plaintiff fell, and the after the fact placement of the wet
floor sign.  However, even if this is sufficient evidence from which I could
infer that prior to the plaintiff’s fall, the defendant had not taken
reasonable care to make the premises safe in the prevailing circumstances, I
must still find a causal nexus between the prima facie case of negligence
and the plaintiff’s fall.

[85]        
In Druet v. Sandman Hotels, Inns & Suites Limited, 2011 BCSC
232, Savage J. set forth an explication of causation as follows at paras.
14-16:

[14]  In Snell v. Farrell, [1990] 2 S.C.R. 311 at 326
the Supreme Court of Canada defined causation as:

…an expression of the
relationship that must be found to exist between the tortious act of the
wrongdoer and the injury to the victim in order to justify compensation of the
latter out of the pocket of the former.

[16]  Writing for the Supreme Court of Canada, Sopinka J.
supported a less rigid application of the traditional approach to causation at
328:

I am of the opinion that the
dissatisfaction with the traditional approach to causation stems to a large
extent from its too rigid application by the courts in many cases.  Causation
need not be determined by scientific precision.  It is, as stated by Lord
Salmon in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, at p. 490
[(H.L.)]:

…essentially a practical question
of fact which can best be answered by ordinary common sense rather than
abstract metaphysical theory.

[86]        
Applying “ordinary common sense” to the circumstances as I have found
them, leads me to conclude that the plaintiff has not established a
relationship between the allegedly tortious act of the defendant − allowing the floors to
become wet without adequate checks or warning signs − and the injuries she suffered by tripping on the
mat which was put in place to abate the risk of wet floors. 

[87]        
Although the plaintiff
testified that she would have taken more care if there were warning signs in
place, she also testified that she was aware the floors were wet and that there
were mats on the floor.  There is no evidence from which it could be inferred
that the condition of the mats caused or contributed to the plaintiff’s trip.  Given
the plaintiff’s admitted knowledge of the wet floor and the presence of the
mats, in my view it is speculative to suggest that had the defendant put up a
wet floor sign the plaintiff would not have tripped on the mat.

[88]        
I am thus unable to find
any causal nexus between the defendant’s want of reasonable care alleged by the
plaintiff and the mechanism of her trip and fall.

[89]        
That being so, while I
accept the fall had an immediate and ongoing impact on the plaintiff whom I
found to be a sympathetic person, I am nonetheless unable to find the defendant
liable and I dismiss the action.

[90]        
Costs will be in the
cause.

_________________________

Associate Chief Justice Cullen