IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Doucette v. McDaniel, |
| 2014 BCSC 42 |
Date: 20140113
Docket: S104744
Registry:
Vancouver
Between:
Bruce Prentice
Doucette
Plaintiff
And
Mary Ann Eileen
McDaniel
Defendant
Before:
The Honourable Madam Justice Dardi
Reasons for Judgment
Counsel for the Plaintiff: | J.L. Harbut W. McFadden |
Counsel for the Defendant: | S.R. Lerner M.M. Thiessen |
Place and Date of Trial: | Vancouver, B.C. June 24-26, 2013 |
Place and Date of Judgment: | Vancouver, B.C. January 13, 2014 |
INTRODUCTION
[1]
On August 2, 2008, the plaintiff, Bruce Doucette, was injured in an
unfortunate accident when he fell down an unprotected stairwell (the
Stairwell) in a residence on Pender Island, British Columbia. The waterfront residence
on Pender Island is owned by the defendant, Mary Ann McDaniel.
[2]
Mr. Doucette asserts that the defendant is liable for damages for
his injuries because she breached her duties under the Occupiers Liability
Act, R.S.B.C. 1996, c. 337 (the Act). He also brings a claim
in negligence.
[3]
The defendant admits that she was an occupier of the premises at the
material time but she disputes liability. Her position is that she took
reasonable care to see that Mr. Doucette and her other guests would be
reasonably safe on her premises. She contends that Mr. Doucettes injuries
were caused by his own carelessness rather than a lack of care on her part.
Alternatively, the defendant says Mr. Doucette was contributorily
negligent.
[4]
The sole issue for determination at trial is liability for Mr. Doucettes
accident.
[5]
Before turning to the analysis, I will summarize the pertinent facts and
the applicable legal principles.
FACTS
[6]
For the most part, the essential facts are not in contention. I note
parenthetically that Mr. Doucettes wife did not testify at trial because
of health concerns. There was no suggestion by either party that the Court
should draw any adverse inferences in this regard.
[7]
The residence at issue is a recreational waterfront property (the
Property). Prior to August 2008, the residence had been undergoing renovations
and the railings around the Stairwell and the railings on the exterior deck had
not yet been installed.
[8]
Sometime in July 2008, the defendant invited Steve Lervold, whom she was
dating at the time, and Mr. Doucette and his wife, to spend a weekend at
the Property. Neither Mr. Doucette nor his wife had ever visited the Property
before, nor were they shown any photographs of the Property. The discussion of
the proposed weekend gathering took place in a pub, some two to three weeks
prior to the August 2, 2008 weekend. In this discussion, the defendant brought
up the lack of railings on the deck of the Property and in the interior of the
residence. I accept Mr. Lervolds evidence that there were no significant
details mentioned during this initial discussion.
[9]
On August 2, 2008, Mr. Doucette, together with his wife and small dog,
flew his aircraft from Boundary Bay to Pender Island. They were picked up in a
vehicle by the defendant and Mr. Lervold, who had travelled to Pender Island
by car the previous day.
[10]
The defendant testified that in the car ride from the aircraft landing
site, she raised the lack of railings at the Property. Neither Mr. Lervold
nor Mr. Doucette recalls such a discussion. On this point, I prefer the
evidence of Mr. Lervold and Mr. Doucette.
[11]
After a short car ride the two couples arrived at the Property. When
they entered the residence through the front door, Mr. Lervold pointed out
the Stairwell to Mr. Doucette and his wife. The Stairwell had neither
handrails nor guardrails. The four adults then walked downstairs into the
basement and then upstairs again via the Stairwell. When they came back
upstairs Mr. Doucette and his wife were shown another bedroom and Mr. Doucette
dropped off their luggage in this upstairs bedroom.
[12]
The four adults then went out to a large deck overlooking the ocean. The
plaintiff took a number of photographs. The defendant, Mr. Doucette, and Mr. Lervold
shared a single marijuana cigarette. Mr. Doucette drank part of a beer. It
is uncontroverted, and I find, that Mr. Doucette was not intoxicated. It
is common ground that Mr. Doucette had no balance, mobility, or vision
issues.
[13]
Mr. Doucette then decided he would take some photographs of the
artwork in the residence. He entered the residence through a glass door, which was
a different door than he had used to exit the residence onto the deck. This was
the first time he had been in that particular part of the residence. At this
point, I note that the photographs Mr. Doucette took on August 2, 2008 were
admitted as evidence in the trial. While he was taking photographs and looking
through the viewfinder, Mr. Doucette did not bump into any furniture nor
did he stumble or trip.
[14]
When Mr. Doucette positioned himself to take a photo of a
particular driftwood sculpture, he fell down the Stairwell and landed at the
bottom of the stairs. I accept Mr. Doucettes evidence that while he was
aware that there was an unprotected stairwell somewhere in the residence, he
did not observe the Stairwell when he re-entered the residence from the patio
deck.
[15]
Mr. Doucette does not remember the fall itself. He was removed on a
stretcher by emergency health personnel and transferred to the hospital. He sustained
serious injuries, including bone fractures and a concussion.
LEGAL FRAMEWORK
[16]
There is no dispute with respect to the legal principles that inform the
analysis in this case.
[17]
The starting point is the Occupiers Liability Act, which provides
a comprehensive code regarding the duty of an occupier of land: Foley v.
Imperial Oil Ltd., 2011 BCCA 262 at para. 27. Section 3 of the Act
provides that an occupier of premises owes a duty to take reasonable care 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 of care applies in relation to
the condition of the premises, activities on the premises and conduct of third
parties on the premises: Etson v. Loblaw Companies Ltd. (c.o.b. Real
Canadian Superstore), 2010 BCSC 1865 at para. 3.
[18]
The authorities establish that it is the circumstances of any given
situation that govern what the occupier must do to take reasonable care to see
that those on its premises will be reasonably safe: Dandell v. Thompson
Rivers University, 2013 BCCA 490 at para. 11. In Waldick v. Malcolm,
[1991] 2 S.C.R. 456 at para. 33, the Court summarized the governing
legal principles:
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 will necessarily be very specific to each fact situation —
thus the proviso "such care as in all circumstances of the case is
reasonable". One such circumstance is whether the nature of the
premises is rural or urban. Another is local custom, which Blair J.A.
explicitly mentions and I view his reasons as considering and rejecting the
alleged custom. [Emphasis added]
[19]
An occupier is not an insurer against every eventuality that may occur
on a premises; the standard of care is one of reasonableness and not perfection:
Fingerhut v. Longwood Station Ltd., 2009 BCSC 1839, at para. 11.
[20]
In assessing what is reasonable in any given case, the courts have
repeatedly endorsed the notion that the care required is commensurate with the
degree of risk of harm; the greater the risk of harm, the greater will be the
care required to protect against the risk: Lawrence v. Prince Rupert (City)
and BC Hydro and Power Authority, 2005 BCCA 567 at paras. 21-22.
[21]
The burden is on the plaintiff to establish liability on a balance of probabilities.
The plaintiff must show that his injury resulted from a breach of the
defendants duty of care: Etson at para. 7.
[22]
The plaintiff is required to take reasonable care for his own safety. However,
the authorities establish that a plaintiff is not required to keep his eyes
focused on the ground: Etson at para. 8. The burden of proving
contributory negligence lies on the defendant. In order to establish
contributory negligence, the defendant must first prove that the plaintiff
failed to take reasonable care for his own safety and, secondly, that his
failure to take care was a contributing cause of the accident: Myatt v.
Holicza, 2000 BCSC 1149 at paras. 49-51. The governing principles were
articulated by the Privy Council in Nance v. British Columbia Electric
Highway, [1951] A.C. 601, J.C.J. No. 6 at para. 13:
[W]hen contributory negligence
is set up as a defence, its existence does not depend on any duty owed by the
injured party to the party sued, and all that is necessary to establish such a
defence is to prove
that the injured party did not in his own interest take
reasonable care for himself and contributed, by this want of care, to his own
injury. For when contributory negligence is set up as a shield against the
obligation to satisfy the whole of the plaintiffs claim, the principle
involved is that, where a man is part author of his own injury, he cannot call
on the other party to compensate him in full.
[23]
Pursuant to s. 7 of the Act, the Negligence Act,
R.S.B.C. 1996, c. 333, is applicable to claims made under the Act. S. 1
of the Negligence Act provides:
1(1) If by the fault of 2
or more persons damage or loss is caused to one or more of them, the liability
to make good the damage or loss is in proportion to the degree to which each
person was at fault.
ANALYSIS
[24]
The defendant asserts that she holds the Property as a bare trustee for
her brother but admits that she is an occupier within the meaning of the Act
and that at the material time she owed a duty to Mr. Doucette.
[25]
The starting point in the analysis is to consider whether in all the
circumstances the defendant took reasonable steps to ensure that Mr. Doucette
would be reasonably safe on the premises.
[26]
I have reviewed in detail the photographs tendered in evidence and I
reject the defendants characterization of the Stairwell as obvious. I agree
with Mr. Doucettes submission that the Stairwell was difficult to see
because the floors and walls adjacent to it were all the same or similar in
colour. The Stairwell is located at the base of a wall that at the material
time was painted the same colour as the walls in the Stairwell. The colour and
texture of the floor tiling blended in with the Stairwell. The opening of the Stairwell
was flush with the floor. There was no demarcation of any kind. The placement
of the furniture did not signal the presence of an opening. The combination of
these factors made it difficult to discern the Stairwell from its surroundings.
[27]
At trial the defendant properly conceded that having been left
unprotected, the Stairwell presented a reasonably foreseeable risk of harm. The
evidence overwhelmingly shows that the Stairwell was not reasonably safe. There
were no railings or protective barriers to prevent someone from falling into
the Stairwell. There was no other type of marking or barrier to draw attention
to the ground level hazard.
[28]
The defendant says that she moved the dining room set slightly to the
right prior to the arrival of Mr. Doucette and his wife. However, the
evidence falls short of showing that this configuration of the dining room
furniture was an effective step in minimizing the risk to the guests as users
of the premises. In my view, if anything, this obscured the hazard.
[29]
The defendants primary contention is that she discharged her duty
because she put Mr. Doucette on notice of the condition of the Stairwell.
[30]
Was apprising Mr. Doucette of the unprotected nature of the Stairwell
sufficient to discharge the defendants duty to exercise the care that, in all
the circumstances, was reasonable such that Mr. Doucette, as a user of the
premises, would be reasonably safe and not exposed to an unreasonable risk of
injury?
[31]
In my view, the defendants duty to take reasonable care to see that Mr. Doucette
would be reasonably safe in using the premises was elevated because:
(a) Falling down the Stairwell could
potentially cause serious injury or death;
(b) Mr. Doucette
was an invited guest for the weekend and was unfamiliar with the layout of the premises
and the location of the hazard in the premises.
[32]
The guests were unfamiliar with the residence and, as referred to
earlier, the opening of the Stairwell was not clearly visible from many vantage
points in the residence. The guests were invited to stay over a weekend. It was
reasonably foreseeable that the guests – although aware of the hazard – could
have their attention diverted from their physical surroundings and would not
remain vigilant at all times and in all circumstances. As the guests were to
stay for the weekend, this also may have required them to move about at night
or in reaction to some emergency.
[33]
I am mindful that the legal test is whether the steps taken by the
defendant were reasonable; this Court must not speculate with hindsight as to
what could have been done to prevent Mr. Doucettes injury. However, one
option would have been to cover the stairwell opening with plywood and block
off the lower floor, or to make some other temporary barrier, deterrent or
markings.
[34]
The defendant relies on the case of Wright v. McArthur, 2005 BCSC
1797. In Wright, three guests arrived at the defendants recently
renovated summer home. The defendant invited the parties onto the deck, upon
which railings had not yet been installed and warned them about the lack of
railings. The plaintiff understood the warning. While trying to take a picture,
the plaintiff stepped to the side to improve his viewpoint, then stepped to the
side again, and off the edge of the deck and was injured. The Court found the
warning was sufficient and constituted reasonable care to make the deck
reasonably safe.
[35]
Although the circumstances in Wright are similar to the facts in
this case, in my view, there is a distinction of some significance. These were
invited guests who were invited to stay for a weekend. In Wright, the
plaintiff had attended the defendants house unannounced. The defendant in Wright
had no real opportunity to make the premises safe and it does not appear that
he could have done anything other than issue a warning. I also note that in Wright
the defendant not only cautioned the plaintiff about the unprotected edge of
the deck but took further precautions by moving all of the chairs to the side
of the house, furthest away from the unprotected edge. This not only physically
distinguished the safe side of the deck from the unprotected edge, but also signalled
that the plaintiff should not go near the unprotected edge. Aside from the
defendants claim that she moved the dining set, which I have found was not an
effective method of minimizing the risk of the Stairwell, no similar actions
were taken by the defendant. As well, it is clear that in Wright, the
whole edge of the deck was still under construction, which contrasts to the
present case where there was an indoor hazard in the interior of a residence
which appeared to be finished. In my view, the distinguishing facts render the
analysis in Wright inapplicable.
[36]
In the end, given the foreseeable and unreasonable risk of harm the Stairwell
presented, I am not persuaded that the defendant took reasonable care to ensure
in all the circumstances Mr. Doucette would be reasonably safe in using
the premises. As a result, I find the defendant breached her duty of care to Mr. Doucette.
[37]
The next step in the analysis is to consider whether Mr. Doucette
has discharged his onus of showing that the defendants breach of duty under s. 3
of the Act caused his injuries. Whether the defendant is liable to Mr.
Doucette for his injuries is a matter of causation. The primary test to be
applied in determining causation is commonly articulated as the but for test.
The plaintiff bears the burden of showing that but for the negligent act or
omission of the defendant, the plaintiffs injury would not have occurred: Farrant
v. Laktin, 2011 BCCA 336 at paras. 9 and 11; Athey v. Leonati, [1996]
3 S.C.R. 458; Resurfice Corp v. Hanke, 2007 SCC 7; Clements v. Clements,
2012 SCC 32. Causation is a practical question of fact which can be best
answered by ordinary common sense: Snell v. Farrell, [1990] 2 S.C.R. 311
at 328.
[38]
On this issue of causation the defendant relies on Lawrence v. Prince
Rupert (City), 2005 BCCA 567. In Lawrence, the plaintiff was injured
when she tripped and fell over a pole the defendant, B.C. Hydro, had left lying
on a sidewalk. The Court of Appeal concluded that the risk of harm created by
the defendants conduct was that someone using the sidewalk might not see the
pole and might trip over it. However, the plaintiff saw the pole and knew she
must step around it but was careless in doing so. The Court of Appeal held that
the risk of injury from B.C. Hydros conduct ceased to be a proximate cause of
the accident when the plaintiff saw the pole and realized that she must step
around it.
[39]
The facts in Lawrence are distinguishable. In this case, Mr.
Doucette did not see the Stairwell upon re-entering the residence from the deck
and fell into it and injured himself. I find a causal nexus between the
tortious act of the defendant and the injuries Mr. Doucette sustained when
he fell into the Stairwell. I conclude that, unlike the facts in Lawrence,
the evidence in this case supports a finding that the defendants breach of
duty under s. 3 of the Act caused Mr. Doucettes injuries.
[40]
I turn next to consider whether Mr. Doucette failed to take reasonable
care for his own safety and whether his failure to do so was one of the causes
of the accident.
[41]
On the totality of the evidence, I find Mr. Doucette at fault for
his failure to take reasonable care for his own safety. It is uncontroversial
that Mr. Doucette was apprised of the hazard upon entering the residence. He
had walked up and down the Stairwell. Having been apprised of the hazard, he
should have proceeded more cautiously when he re-entered the residence from the
deck. The failure to take reasonable care for his own safety was a contributing
cause of this unfortunate accident.
[42]
In the result, liability will be apportioned pursuant to the provisions
of the Negligence Act.
[43]
The Court in Hynna v. Peck, 2009 BCSC 1057, distilled the
pertinent principles regarding apportionment at paras. 88-89:
In assessing apportionment, the Court examines the extent of
blameworthiness, that is, the degree to which each party is at fault, and not
the degree to which each partys fault has caused the loss. Stated
another way, the Court does not assess degrees of causation, it assesses
degrees of fault: Cempel v. Harrison Hot Springs Hotel Ltd., [1997] 43
B.C.L.R. (3d) 219, 100 B.C.A.C. 212; Aberdeen v. Langley (Township),
2007 BCSC 993 [Aberdeen]; reversed in part, Aberdeen v. Zanatta, 2008
BCCA 420.
In Alberta Wheat Pool v. Northwest Pile Driving Ltd.,
2000 BCCA 505, [2000] 80 B.C.L.R. (3d) 153, Finch, J.A. (now the Chief
Justice), for the majority of the Court of Appeal, explained this important
principle at paras. 45-47:
In my view, the test to be applied here is that expressed by
Lambert, J.A. in Cempel, supra, and the Court’s task is to assess
the respective blameworthiness of the parties, rather than the extent to which
the loss may be said to have been caused by the conduct of each.
Fault or blameworthiness evaluates the parties’ conduct in
the circumstances, and the extent or degree to which it may be said to depart
from the standard of reasonable care. Fault may vary from extremely
careless conduct, by which the party shows a reckless indifference or disregard
for the safety of person or property, whether his own or others, down to a
momentary or minor lapse of care in conduct which, nevertheless, carries with
it the risk of foreseeable harm.
[44]
In assessing the comparative blameworthiness of
the parties the Court considers various factors, including the nature of the
departure from the standard of care, its magnitude and the gravity of the risk
thereby created; Aberdeen v. Langley (Township), 2007 BCSC 993; revd in
part 2008 BCCA 420 at para. 67.
[45]
I conclude that the defendants failure to make
the premises reasonably safe is more blameworthy than Mr. Doucettes momentary
lapse of care. At the material time, Mr. Doucette was unfamiliar with the
layout of the premises and was not yet fully oriented as to the location of the
Stairwell in the premises.
[46]
In the end, I find that the defendant was
substantially, but not entirely, to blame for the accident and I therefore
attribute fault to both parties.
[47]
I apportion liability 65% to the defendant and
35% to Mr. Doucette.
COSTS
[48]
If the parties are unable to agree on costs
within 60 days of the release of these reasons for judgment, they should
reserve a date through Supreme Court Scheduling to address the issue.
Dardi
J