IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Ranjbar v. Islamic Republic of Iran Shipping Lines, |
| 2014 BCSC 1983 |
Date: 20141022
Docket: 10-3553
Registry:
Victoria
Admiralty
Action in rem against the Ship
Iran Mazandaran (and/or property) and The Ship Zarzan
(and/or property) and In personam
Between:
Jafar Jasem Zadeh Ranjbar
Plaintiff
And
Islamic Republic
of Iran Shipping Lines,
Prince Rupert Grain Ltd., and
The Owners and All Others Interested
in The Ship (And/Or Other Property)
Defendants
Before:
The Honourable Madam Justice Dillon
Reasons for Judgment
Counsel for the Plaintiff: | M. Selly |
Counsel for the Defendant, Prince Rupert Grain Ltd.: | D.F. McEwen Q.C. |
Counsel for the Defendants, Islamic Republic of Iran | H.P. Swanson |
Place and Dates of Trial/Hearing: | Vancouver, B.C. December 9-13, 16-20, |
Place and Date of Judgment: | Vancouver, B.C. October 22, 2014 |
Table of Contents
(d) Events of October 26,
2009. 13
(f) Occupational Health
and Safety Expert Evidence. 27
Introduction
[1]
The plaintiff, Jafar Jasem Zadeh Ranjbar (Ranjbar), the chief cook on
the vessel Iran Mazandaran (the vessel), fell from a gangway owned and
operated by the defendant, Prince Rupert Grain Ltd. (PRG), when he boarded the
vessel as it was docked in Prince Rupert on the night of October 26, 2009. He
fractured his right femur. The plaintiff claims in negligence against PRG and
the defendant, the owner of the vessel, Islamic Republic of Iran Shipping Lines
(IRISL). The in rem claim against The Owners and All Others Interested
in The Ship (And/Or Other Property) was not served.
[2]
Liability is the main issue as each defendant says that it was not
negligent and that the plaintiff is solely responsible for the injuries that he
suffered. Both defendants say that if the plaintiff is not found to be fully at
fault for his injuries, then each of the other defendants is the only other
possible contributing cause of the injuries and/or that the plaintiff is
contributorily negligent. The parties have agreed on the appropriate award for
non-pecuniary damages and future care costs but past and future wage loss are
in issue.
Facts
(a) The Plaintiff
[3]
The plaintiff is a 51-year old Iranian who has worked with IRISL as a
cook on numerous ships since 1994. Before that, he served in the military,
worked at a hospital, and drove a taxi in Iran. Prior to work on the Iran
Mazandaran, the plaintiff worked under contract on at least six other vessels
in IRISLs fleet, stopping at ports around the world, including many English speaking
countries. His contract required him to be away from his home in Iran for up to
eight months at a time. The plaintiff earned $1,300 USD per month as chief cook
on the vessel.
[4]
The plaintiff held certificates as a first grade ships cook and took training
in ship security and basic safety.
[5]
As an experienced cook on board ship, Ranjbar was familiar with terminal
facilities including flashing lights on shore cranes and horn sounds when a
crane was backing up. He knew to be careful about moving equipment when leaving
the ship at a terminal. Generally, Ranjbar knew that flashing lights or a
warning horn meant to look out because something was moving. However, if there
was a specific danger at a terminal, he would be told about it. He did not rely
on signage in this situation because he generally could not read it. He
received safety training but no specific training related to use of gangways or
ladders when going on or off ship.
[6]
Normally, Ranjbar disembarked from the ship using the ships own
gangway. It is raised and lowered by the ships crew who carefully watch to
ensure that the gangway is safely used. There were times when the terminals
gangway was used. However, in all of his travels, Ranjbar had never seen an
automatic lifting gangway.
[7]
Ranjbars first language is Farsi. He studied English in high school but
remembers little. He had what can be described as a basic travellers knowledge
of English limited to basic greetings and how much is something. Knowledge of
English was not a requirement for his job as cook. He did not use English in
daily life on board the ships, although English was the common language of
communication amongst the international crew. Most of the cooking staff with
whom Ranjbar worked were Iranians who spoke Farsi, but there were also Indians
and Filipinos who spoke English and with whom Ranjbar mainly communicated with
gestures. Ranjbar communicated with officers in Farsi or had others translate
for him from English. Safety and other instructions were given in Farsi and
English on the ship but his basic training for certification had been in Farsi.
His seamans documentation was in Farsi and English.
[8]
Ranjbar did not understand English when spoken to in the hospitals after
the October 26, 2009 events. Except for polite pleasantries such as how are
you and a few odd words and numbers, Ranjbar did not understand any of the
English spoken to him while in hospital. He used gestures to communicate,
consistent with his stated knowledge of English. An Iranian resident of Prince
Rupert and the ships agent, Peter Riley (Riley), assisted Ranjbar with
interpretation and arrangements that had to be made. Riley described Ranjbars
English as extremely minimal and said that it was very difficult to converse.
When Ranjbar later underwent heart surgery, his son translated by telephone.
[9]
The plaintiffs English has not significantly improved despite living in
Canada for over four years. His friend with whom he lived for three years
described Ranjbars English as not good at all. He attended English classes
in Vancouver for about a month and would have been funded for continuation, but
he said that pain and depression prevented him from continuing.
(b) The gangway
[10]
Prince Rupert Grain Ltd. operates and maintains the deep sea terminal
located in Prince Rupert, B.C., including the automatic gangway that provides
access for all vessels coming alongside at the terminal. The gangway was
installed in 1985 by Swan Wooster Engineering and has been in use since that
time. The original drawings for the gangway were in evidence. There was no
provision for a horn, lights or beacon on the drawings.
[11]
It was last visually inspected by an engineering firm for structural and
operational deficiencies in 2008. The safety committee of PRG also inspected
the dock area in 2007: but, there was no demonstration of how the gangway
worked, neither the manuals nor the alarm system was reviewed or discussed, and
there is no evidence that the safety system itself or the warning signs and
horn were reviewed. The terminal was inspected from time to time by federal
safety officers. There is no suggestion that the safety of the gangway was
raised as a safety issue for PRG: however, there is no evidence that federal
safety personnel ever went onto the gangway or watched it in operation for
purposes of a safety review. From all of this, it appears that PRG had not
reviewed the system or considered the adequacy of safety measures including the
signs and horn since installation off the gangway in 1985. None of the other
terminals in Prince Rupert or Kitimat have automated gangways.
[12]
The terminal is used by 100 ships per year and by many personnel
including ships crew, longshoremen, customs agents and ships agents. PRG knew
that many of the ships crews that used the gangway did not speak English. All
users have to make prior arrangements to access the terminal and use a card for
security so it is known who is coming in and out. There are detailed written
security procedures in place for access control with checklists to use before
each ship arrives. The arrival checklist, called the vessel arrival
interface, deals with security issues. The marine facility security officer
was to go through this checklist with ships personnel when the ship arrived
and complete the form.
[13]
The gangway is attached to a wharf tower that moves along a monorail.
The gangway itself is a metal walkway, 53 feet in length. It has curved treads
or steps on it such that one would have to step on the top of the treads or
rounded steps if the gangway was level and would use it as a stair if the
gangway was at an angle, depending on the tide. The natural effect of this
would be to slow someone who was traversing down the gangway as it is never
flat. The gangway is held by a hoist that moves ahead first and then the gangway
follows after a time gap. At the ships end, attached to the gangway by a
gimballed pivot, is a ladder, much like a stepladder, with eight steps or
rungs. The ladder is two meters in height. It swings or swivels or dangles at
the end of the gangway and is planted on the deck of the ship when the gangway
is fixed. Therefore, to access a vessel from the terminal, a person would climb
up the tower, go through a waist high metal gate that leads to a platform, then
tread across the gangway stairs to get to the ladder and climb down the ladder.
Depending on the tide, the angle of the gangway could be quite steep.
[14]
The gangway moves automatically, adjusting up or down, even sideways,
with movement of the vessel. The gangway was equipped with a side travel
sensor so that if side travel limit was exceeded, then the following sequence
would occur: a horn at the terminal end of the gangway would sound for 20
seconds; after a 5 second delay following the 20 seconds, the lifting mechanism
would activate; a few seconds later, the gangway would automatically lift off
the deck of the ship for 10 seconds. The gangway shakes a little as it is
lifted. It moves at 30 feet per minute.
[15]
But, if the side movement of the ship was only brief and the movement
corrected, the warning horn would sound but then stop. Movement of the gangway
would not be initiated, the timer would be re-set, and the procedure would be
ready again for the next alert. This could happen again within seconds or
minutes. A record was kept of the alarms. The alarm also sounds in the security
office which is manned but that is quite a distance from the gangway. The
records showed that the gangway off ship alarm in the security office could go
off for as long as 31 minutes and then it would be unclear when the gangway
lifted off the ship. It is not unusual in October for the gangway side travel
alarm to go off many times in one day. The system has changed since 2009 to be
more technically sound.
[16]
This automatic lifting procedure was designed to prevent damage to the
gangway and the ship as the ship moved at the dock. It was also a cost saving
measure so that the gangway did not have to be manned. PRGs assistant
maintenance superintendent, Jose Verissimo (Verissimo), said that it was
considered the ships job to monitor the gangway.
[17]
The original engineering operations and maintenance manual for the
gangway referred to the side sensor switch if the ship moved more than 3000
millimeters either side of the centreline of the ladder. The switch is located
near the seaward end of the ladder. The manual said that, if the ship moved
more than that: This switch will energize a beacon and siren for 6 seconds. At
this time, anyone using the access ladder should vacate it immediately. 15
seconds later, the hoist will automatically raise to clear the ship. Note that
the manual referred to clearing from the ladder, not from the gangway. It
referred to a siren and not a horn. The siren sounded for less than 20 seconds.
It allowed more time after the siren before activation of the lifting
mechanism. It referred to use of a beacon as an alert. The linear travel in the
original drawing contemplated the sensor activating at movement of 1500
millimeters. The original manual did not say anything about an alarm sounding
and then stopping without the gangway lifting. There had obviously been a
design change during installation of the gangway or afterwards that was not
documented. The alarm sequence was changed after the gangway was built. It was
not known when, why or how this change occurred. Mark Newbery (Newbery), the
maintenance superintendent at PRG, said that the operations and maintenance
manual is not in use, but is for reference only. There is no documentation at
PRG that outlines the present operation of the gangway, including the present
time sequence for the horn.
[18]
There is no manual override for the gangway in the security office which
is manned. The alarm rings there and terminal employees have to attend at the
gangway to lower it once it has lifted. It can take several minutes to get from
the security office to the gangway. A manual override for this purpose is on
the gangway. However, there are no instructions as to how to use it nearby and
ships crew are not informed about it. There is no video or other monitoring
device anywhere.
[19]
Verissimo had been on the gangway when it lifted and considered that it
only raised 7 or 8 feet and someone should not get hurt. He had never, however,
been on the ladder when the gangway rose. He said this would be dangerous. He
said that he took 27 seconds to go down the gangway.
[20]
Signs posted on the gangway warned that the hoist was automatic and to
clear the stairs if the horn sounded. There were two signs at the terminal
end of the gangway, one on the gate that one opens to access the gangway from the
terminal and the other on the approach to the stairs, that said:
WARNING AUTOMATIC HOIST CLEAR STAIRS IMMEDIATELY WHEN HORN SOUNDING |
These two signs were at or below
the handrail. There was no sign above waist height.
[21]
Another sign of equal size on the outside of the gangway just above the
ladder said the same thing, except to clear stairs immediately when horn
sounds. It was also placed just below the handrail. There was just this one
sign near the ladder, so it generally faced towards the aft of the vessel,
assuming that the ladder was placed at the centre of the docked vessel.
Therefore, someone coming from the starboard accommodation on the vessel would
not see this sign.
[22]
The signage was such that, given that the vessel was docked portside to
the terminal on October 26, 2009, someone leaving the ship from the aft port
side of the vessel may have observed the one sign that was at the top of the
ladder on the gangway as he left the ship. The other two signs would not have
been visible. Upon return and coming the other way, the other two signs, the
one at the gate and at the top of the stairs, would have been visible. However,
given that both were below the top of the handrail, visibility would have been
hampered if someone was in front as you approached.
[23]
When the side sensor switch was activated, a horn sounded. The horn was
situated above the gangway and was 110 decibels. The horn that sounded was not
different from other alarms used to alert for movement of heavy equipment at
the dock. The horn could sound without the gangway lifting. However, there was
no warning or information about this. Thus, someone could experience the horn
sounding and there would not be any movement of the gangway. Also, from records
kept, it is apparent that the horn sounded often, especially in the fall and
winter months. The assistant maintenance superintendent agreed that this could
be very confusing for someone on the ship without instructions.
[24]
There was no direct lighting on the signs or on the gangway. Reliance
was on general terminal lighting and any lighting coming from docked vessels.
There was no flashing light or warning beacon when the gangway was about to
move. This would have helped to indicate what the horn related to, according to
Verissimo.
[25]
Both Newbery and Verissimo knew of no accidents having occurred on the
gangway since its introduction except for the plaintiff. However, this
information is anecdotal only because there is no evidence that either had
reviewed the minutes of the safety committee to confirm this. No safety
investigation, review, or discussion of this incident took place because it was
considered that the plaintiff had fallen on the ship. The assistant maintenance
superintendent thought, however, that this was a matter that should have been
reviewed by the safety committee. If there had been no safety committee meeting
as a result of this incident, Verissimo agreed that there possibly had been
other accidents.
(c) The vessel
[26]
The Iran Mazandaran was a bulk carrier owned by IRISL. It was in Prince
Rupert in October 2009 to load grain. G. W. Nickerson Co. Ltd., represented by
Riley, was to be the ships agent when in Prince Rupert. The agent was really a
sub-agent under an independent sub-contract to provide services to the ship and
the term is used loosely here. The services of the agent vary according to
needs but the focus is to get the ship ready to load and get out of port as
efficiently as possible.
[27]
Riley had been on the PRG gangway many times. He had seen the signs and understood
that he was to clear the stairs when the horn sounded. He knew that the gangway
lifted automatically; but, he had never heard the alarm and seen the gangway
lift as a sequence. He did not know about the time sequence of the alarm. He
had seen the gangway lift without the horn sounding. He had never seen the
gangway lift after the alarm sounded and had never seen the gangway lift with
someone on it. He had never been on the gangway when the horn went off and did
not think of the gangway as an inherent danger. He had never seen the gangway
lift enough to trigger the alarm. He had never been given any information about
the gangway or its use and had never been asked to pass any information along
to members of the crew of any vessel. He had been given an orientation to the
terminal from PRG; but, it did not include any information about the gangway.
He had been present when the PRG security officer met with the chief officer of
the vessel and had never heard mention about the gangway. Prior to October 2009,
Riley had attended safety sessions conducted at two other terminals that
included requirements on the dock and identification of dangerous areas.
However, these terminals used the ships gangway.
[28]
Usually, the vessel used its own gangway when in port. This is a
standard looking, rigid single piece with rods holding it. It rests alongside
the ship, inclining towards the dock. There is a net underneath. It is moved by
a winch that is operated manually. A crew member is required to be there to
raise or to lower the gangway and must ensure that there is nobody on it. It is
significantly different from the gangway at PRG. Most importantly, there is not
a ladder at the end of it which requires the user to climb up or down and it
does not lift off the vessel automatically.
[29]
A watchman is posted at the ships end of the gangway but not
necessarily near the gangway. He records the comings and goings on and off the
ship. The deck officer is responsible to ensure that the gangway and moorings
are positioned correctly; however, he does not check to see if a gangway not
operated by the ship is operating correctly.
[30]
Nader Salmannia (Salmannia) was the chief officer of the vessel at the
relevant time. He testified that it was usual for terminal personnel to inform
the master/captain of the vessel by email of any local dangers of which ships
personnel might not be aware. The master would then inform ships personnel.
The ships agent would also go to the captain with any specific information
about a terminal of which he was aware. Salmannia said that if the ships own
gangway was not going to be used, the captain would be informed and the captain
would inform him. He acknowledged that as chief officer, it was important for
him to be familiar with the gangway used and to explain to crew members who
were using a gangway. He said that if there was something special about a
gangway, he expected that the terminal agent would have taken and shown him the
danger. Because of language difficulties, terminal personnel usually showed the
chief officer any risks so that they were understood. If something was risky,
it should also have been written on paper so he could inform the crew.
According to Salmannia, the ships agent would normally tell the captain about
any specific concerns related to cargo information: but, the terminal was
supposed to inform of any safety concerns regarding the gangway if it was not
the ships own gangway that was to be used.
[31]
Salmannia testified that it was standard practice on any ship that he
had served on for the gangway to be operated and monitored by a crew member. If
the ships gangway was not to be used, then it was the terminals
responsibility to operate and monitor.
[32]
Ten other ships owned by IRISL had called into the PRG terminal prior to
the arrival of the vessel on October 26, 2009. However, it is not known if any
experienced activation of the gangway. There is no evidence that IRISL
otherwise knew that the gangway was automated.
(d) Events of October 26, 2009
[33]
Prior to coming alongside the terminal early in the morning of October
26, 2009, the vessel had been moored offshore and numerous port, terminal,
customs, and other personnel had come on board via the ships gangway. The
chief officer ensured that crew took care to operate the gangway properly. Riley
boarded with transportation, customs, and food inspection personnel and advised
the master how the berthing was to go, the loading rate, and estimated time of
completion and departure. He did not discuss the terminal gangway. He testified
that he did not think that he needed to: there was no inherent danger and the
signs were clear. He knew that the gangway could lift automatically but had not
seen it lift with the alarm.
[34]
Prior to the arrival of the Iran Mazandaran at the terminal, Salmannia
said that someone from PRG attended at the ship and presented Salmannia with
the vessel arrival interface checklist. Salmannia reviewed and signed the
checklist, but testified that he had no specific memory of it. The point is
that the checklist did not contain any information or warning about the
automatic gangway. Salmannia said that this was more of a security document for
getting on and off the ship and was not intended to warn about unique aspects
of the gangway. However, there was a place for notes on the document and it was
there that Salmannia would have expected to see anything unique about the
terminal or the gangway.
[35]
The chief officer said that he assumes that the captain would have told
him that the terminals gangway was going to be used due to the length of the
ship, but he had no specific memory of that. Salmannia said that he received no
specific information about the gangway and no warnings about its use from
anyone. He received no instructions about how the gangway operated. He did not
convey any information about the gangway to ship personnel. He testified that
if he had known that the gangway could lift off the deck of the vessel, he
would have informed the crew.
[36]
Salmannia testified that he did not remember Lewis Garcia (Garcia), an
operations supervisor for PRG, telling him that a horn would sound if the
gangway was moving to automatic mode or that he was to get off the gangway
immediately if the horn sounded. From his generally responsible attitude and
his understanding at the time, it is concluded that, if Salmannia had been told
that the gangway automatically lifted from the deck of the ship regardless that
someone might be on it, he would have remembered this information because it
was unusual.
[37]
Once the vessel had moored portside to the terminal, the chief officer
observed the ladder of the gangway manually lowered onto the centre deck of the
vessel under supervision of terminal personnel. He checked to ensure that it
was on the deck and thought that it looked safe, although high. By safe, Salmannia
meant that he assumed that the ladder kept in touch with the deck of the ship
at all times. When Salmannia observed the ladder, he came from forward on the
ship and did not see the sign on the gangway at the top of the ladder because
it faced aft. The watchman at the entrance would not have been near the ladder
but approximately 150 feet aft of the gangway. Salmannia was not aware that the
gangway at the PRG terminal operated automatically but knew that terminal
operators had installed the gangway on the vessels deck. He had never seen a
gangway that operated automatically in his ten years at sea for IRISL.
[38]
Garcia said that he attended at the vessel after it was berthed to
supervise placement of the gangway onto the ship. In direct examination, he
said that he spoke to the security officer of the ship near a table close to
where the ladder had been placed and then proceeded to the officers office.
Garcias general duty was to supervise the tie up of the vessel but he also
ensured the health and safety of all employees at the terminal. He was not a
marine facility security officer or alternate. Garcia testified in direct
examination that he went through the vessel arrival interface checklist. He had
filled in the form with the name, date and time, 7:15. He said that he read the
procedure to the security officer, asked about visitors or crew on leave, gave
him the radio and checked to see that it was working, and the officer checked
off the list. Garcia testified that he then mentioned that the gangway was
automated and that when the horn was heard, you were to make sure to clear as
soon as possible. No questions were asked and the meeting ended. Garcia also
said that he gave three passes to the officer to get in and out of the terminal
gates.
[39]
In cross-examination, it was clear that Garcia had no independent
recollection of boarding the Iran Mazandaran on October 26. His recollection of
a table near the ladder is faulty as the crew prefer to be sheltered, Salmannia
said that the watchman waited elsewhere, and Garcia said on discovery that he
waited near the cabin of the ship. Garcia also had no independent recollection
of his conversation with the security officer. He said that it was standard
procedure to go through the checklist, which he agreed had nothing to do with
the gangway. It was also apparent from cross-examination that Garcia had no
training about the checklist, did not understand the entire checklist and
merely read it, waiting for the officer to check it off. He delivered the gate
passes and radio, obtaining a receipt for the radio. He had been given no prior
safety or other instruction about the gangway, except how to lower it onto the
ship. Garcia did not include any mention of a conversation with the security
officer about the gangway in his report immediately after the accident even
though he may have been asked. Despite the statement of Newbery to the
contrary, it was not normal practice at PRG to issue a verbal warning in
relation to the gangway. Finally in cross-examination, Garcia admitted that no
warning had in fact been given. This is consistent with Salmannias
recollection which I prefer. Garcia did not mention anything about the gangway
when he spoke with Salmannia on October 26. Nobody from PRG said anything about
the gangway and there was no written material presented about the gangway when
the Iran Mazandaran docked on October 26.
[40]
Prior to Ranjbar disembarking from the ship, the automatic gangway had
lifted automatically twice. Neither was observed by Salmannia or Ranjbar.
Someone onboard the ship would not necessarily hear the horn go off.
[41]
Ranjbar was working in the galley when the vessel arrived at the
terminal in the port of Prince Rupert on the morning of October 26, 2009. He
did not observe the gangway come onto the ship, nor did he see the gangway
operating before he left the ship around 17:30 hours. He had told both the
captain, Hossein Boustanirad, and the chief officer that he wanted to go to
town that afternoon. He obtained an exit card/pass to depart the secured
terminal. He did not receive any instructions about the gangway or its
operations or about the horns before he left the ship. In particular, he was
not told about the alarm system on the gangway and was not aware of what he should
do if the alarm sounded. He was not yet aware that the gangway was not the
ships gangway. Nor was he aware that the gangway operated automatically,
unlike any gangway that he had seen in the world before. He expected that if
there was anything special about the gangway, he would have been told.
[42]
The plaintiff left the ship in drizzling rain with several others,
including Khosrou Khavar Heidar (Heidar). He went with Heidar because Heidar
knew English and could translate at the supermarket. Ranjbar approached the
gangway from the aft port side of the vessel. There was no caretaker from the
vessel near the gangway. There was no loading going on and the scene was quiet.
Ranjbar knew that this was not the ships usual gangway: however, he took no
particular notice of it and did not notice any lifting apparatus attached to
it. Ranjbar said that even if he had seen the lifting mechanism, he would not
have known what it was and would not have realized that the gangway operated
automatically. Ranjbar made no observations of any signage regarding the gangway
as he left the ship. He did not notice the sign that was on the gangway near
the ladder facing aft as he approached. On discovery, he had said that he was
not paying attention. He noticed that the ladder onto the gangway was different
from the usual gangway that the ship used. However, while he had been on other
gangways where a similar ladder arrangement was used to access the gangway,
none had been automatic. From this perspective, it looked like other gangways
that were operated manually and because Ranjbar did not notice the lifting
mechanism and had not received any information about it being automatic, he
assumed that it operated normally, namely, manually.
[43]
Ranjbar walked down the gangway to the walkway and then through the
terminal to the fenced exit where he used the exit card to open the secured
entry/exit door. He remained in town for about 6 hours, returning to the
terminal with Heidar around 23:20 hours.
[44]
Ranjbar entered the terminal with his pass and, seeing the chief officer
nearby, returned the pass to him before proceeding towards the gangway to the
vessel. Heidar was first on the walkway and then the gangway leading to the
ladder. He put Ranjbars purchases into his knapsack and then proceeded down
the ladder. He was first down the ladder onto the vessel, followed by Ranjbar.
Ranjbar held the knapsack with groceries as Heidar went down the ladder and
then threw it to Heidar who was now on the vessel. The plaintiff was on a step
of the ladder when the ladder went up. He could not recall exactly which step
of the ladder he was on when he fell, but thought that it was the second or
third step from the top. At another time, he marked the third step from the
bottom. He said that it jerked, and then shook him, throwing him onto the deck
of the vessel. Ranjbar did not jump onto the deck himself. He was surprised
that the ladder was moving. He fell onto his back onto the deck of the vessel.
[45]
It was agreed that, after Ranjbar returned to the terminal at 23:20, the
gangway side travel alarm in the security office of the terminal activated at
23:20:04 for 16 seconds. At 23:22:24 it activated again for 28 seconds. At
23:20:04 the gangway off ship alarm in the security office activated for more
than 31 minutes. Sometime around this time, the gangway lifted.
[46]
Ranjbar did not notice the signs as he approached and was on the
gangway. When the signs that were on the gangway were shown to the plaintiff
at trial, he understood only the word warning and automatic. He knew that
this meant that there was some danger there. He knew the word automatic
because it has the same use in Farsi. Heidar had not said anything to Ranjbar
about the signs. Ranjbar did not heed or understand the warning, which would
have been the only word that he would have understood from the signage. In any
event, the signs would not have been meaningful to him given his limited
English.
[47]
Salmannia did not remember the sign at the top of the ladder. However,
he observed the signs on the gate and walkway as he left the ship late in the
evening. He could read and speak English, unlike most other crew on the ship.
He testified that it was unusual to have a warning sign on a gangway and to
have an alarm if it was lifted or lowered. He found the sign confusing because
if you are on the stairs going down, and you have to leave because the horn
sounds, it is not clear where to go. He understood the sign to mean to get off
the stairs immediately when the horn sounded. He thought that he would panic
and not know what to do. He thought that the word automatic meant that the
ladder remained on the deck at all times so that it was safe. He thought that
the gangway would move with movement of the ship but did not consider that the
gangway would lift off the vessel deck automatically.
[48]
Ranjbar heard a horn, but could not say exactly where he was when he
first heard it. It is most likely that he was still on the gangway, near the
ladder, as he recalled that it started when Heidar started to go down the
ladder. He heard it when he was about to go down the ladder. He would have been
nearer to the end of the gangway, close to the ladder. He looked around and did
not see anything moving. He did not know where the sound was coming from. The
sound was the same as he was used to for moving equipment such as cranes on the
terminal deck. However, the horn did not mean anything to him; he did not know
what it was about, except that cranes could be moving on the ground and he saw
nothing. It did not occur to him that the horn sounding meant that the gangway
was about to move. This was new to him and he had not been told about it. He
had never heard such a horn sound for movement of a gangway. He was unfamiliar
with the terminal and did not know that there were no shore cranes around that
area of the terminal. As a cook, he was not involved with the loading of the
ship or its other operations. However, he was aware that there was no loading
going on at the time. He said that he would have paid more attention if he knew
that the alarm related to movement of the gangway and if he knew that the
gangway operated automatically. There is no suggestion that Heidar changed his
movements either as a result of the horn.
[49]
Salmannia testified that if he had been at the terminal end of the
gangway and the horn sounded, he would have known that it related to the
gangway. He did not say, however, that he understood that the gangway would
move.
[50]
It was dark outside. Lighting from the ship and the terminal was low.
Ranjbar could see in front of him but it was not suggested that the area was
brightly lit. Salmannia also said that the lighting was not bright, but he
could see.
[51]
Members of the crew immediately attended to Ranjbar. Riley was contacted
and he arranged for an ambulance and informed security at the terminal about
the incident. Garcia came to the vessel and had to place the gangway down onto
the vessel before ambulance and other personnel could assist. Ranjbar was
removed from the vessel by ambulance and taken to the Prince Rupert hospital
where Riley waited to provide information.
[52]
Salmannia immediately gathered the crew of the ship together to explain
the risk presented by the gangway. The captain of the vessels written report
of the incident attributed the reason for the accident to have been the failure
of Ranjbar to know what to do when the alarm sounded.
(e) Aftermath
[53]
Ranjbar fractured his right hip. He was taken from Prince Rupert to
Kitimat General Hospital for surgery. The medical particulars of the injury are
of a comminuted intratrochanteric subtrochanteric fracture of his right
proximal femur. Doctors performed an open reduction and internal fixation. He
remained in hospital in Kitimat for about two weeks. He then returned to Prince
Rupert hospital for another week before being discharged on November 14, 2009
to a local hotel.
[54]
Under the terms of his employment contract with IRISL, Ranjbar was
entitled to health and other benefits when he was injured and he knew that
IRISL would return him to Iran when he was physically fit to do so. In fact,
Riley had already undertaken measures to return Ranjbar to Iran when Ranjbar
was moved from the hospital to a local hotel. However, when Ranjbar moved to
the Prince Rupert hotel, he received his belongings from the ships agent. When
he noticed that his Koran with certain enclosed religious documents was
missing, he feared that he would be persecuted in Iran. He decided to apply for
refugee status in Canada. By late November, he had retained legal counsel with
the assistance of interpretation by the Iranian resident in Prince Rupert. He
applied for refugee status on December 3, 2009. From then on, he received
federal and provincial health benefits. He agreed in cross-examination that it
was his decision to terminate his employment and stay in Canada.
[55]
G. W. Nickerson Co. Ltd. charged and was paid for services rendered to
Ranjbar, along with his medical costs and security deposit as a result of his
jumping ship. Most of the security deposit was refunded except for an
administration fee after Ranjbar received refugee status.
[56]
PRG never undertook a safety review as a result of the accident. It did,
however, revise the written information provided to a ships security officer.
A form letter now states: Prince Rupert Grain Ltd.s automatic gangway control
system will actuate and lift when movement of the vessel warrants. Please be
advised of applicable signage in English and the pre lift warning horn safe
guard indication. The vessel will be responsible for all crew members accessing
the automated gangway. The new information form also included a prohibition on
smoking at the facility with a penalty for non-compliance. The letter was
addressed to the ship security officer and was to be signed by the facility
security officer. Although he did not participate in this change, Verissimo
said that a better way was needed to advise people about the gangway. No
information sessions have been undertaken to inform others using the gangway.
[57]
Ranjbar moved to Vancouver in January 2010 and started attending with
Dr. Ghannadi, a general practitioner who spoke Farsi.
[58]
Dr. Ghannadi referred Ranjbar to Dr. Hirsch, a physical rehabilitation
specialist. Dr. Hirsch saw Ranjbar in April 2010 and was concerned about
delayed union of the fracture. He was followed up in May and June 2010 and then
seen by the orthopaedic surgeon, Dr. Blachut. The fracture was not united by
October 2010. Dr. Blachut pointed out several options including non-operative
management. However, if pain persisted, then the doctor recommended further
surgery. Dr. Ghannadi discussed the possibility of further surgery with
the plaintiff on several occasions, up to March 2012. Ranjbar did not undertake
further surgery. As it turns out, this was probably a good thing because his
fracture had healed by October 2012 when he was seen by the orthopaedic
surgeon, Dr. Masri.
[59]
In the meantime, Dr. Hirsch saw the plaintiff again in November 2011at
the request of plaintiffs counsel. Since last seen, Ranjbar had made some
functional improvement notwithstanding continuing discomfort in the hip. Dr. Hirsch
reported that Ranjbar sustained significant soft tissue injuries superimposed
upon the hip fracture. However, there was still concern that the ongoing pain
was related to non-union of the fracture and Dr. Hirsch recommended that
Ranjbar be seen again by an orthopaedic surgeon. The doctor reported that
Ranjbars recovery had been complicated by his emotional and psychological
reaction to his circumstances to the extent of developing a reactive mood
dysfunction. He thought, however, that a psychiatrist would be best to comment
on the need for medication. He testified that improvement in hip pain and
function would also improve mood. In November 2011, Dr. Hirsch recommended an
occupational therapist to assist improvement of domestic activities because
Ranjbar had such limited agility. He noted that Ranjbar could drive a car and
access public transportation. Two years post-accident, Ranjbar had ongoing
profound mobility limitations attributable to his right hip injury according
to Dr. Hirsch. It should be noted that the plaintiffs fracture had not healed
at the time of Dr. Hirschs last report and the doctor agreed in testimony that
he would defer to the opinion of an orthopaedic surgeon as to functional
ability in the event that the fracture healed.
[60]
Dr. Oliver, an orthopaedic surgeon, performed an independent assessment
upon Ranjbar in July 2012 and reported his findings on September 28, 2012. He
then re-assessed the plaintiff based upon newer information in August 2013.
Based upon review of a CT scan in June 2010, the doctor found that the fracture
had not yet healed. However, a CT scan and x-ray of August 2012 showed that the
fracture had healed with close to anatomic restoration of the femur that was
only slightly prone to development of arthritis. Dr. Oliver thought that
Ranjbars condition after the healing was due to soft tissue injury that
occurred as a result of the accident and deconditioning since the time of the
accident. He stated that the plaintiff would benefit from a supervised therapy
programme. In his first opinion, Dr. Oliver said that he did not think that
surgery to remove the fixation devices was necessary because they were not
causing any symptoms. However, in his second report of August 2013, he thought
that the devices were causing symptoms in the soft tissue. He testified that
the pain from this could limit Ranjbars ability to engage in physiotherapy or
exercise. Surgery would be brief, under general anaesthetic, with an overnight
or two stay in hospital. Afterwards, physiotherapy was recommended. Dr. Oliver
said that Ranjbar did not have a permanent disability in his right hip. He said
that the plaintiff could be able to return to work as a cook after a
conditioning programme.
[61]
The plaintiff saw Dr. Masri, an orthopaedic surgeon, for an independent
assessment in October 2012. By this time, as reported in an August 2012 x-ray,
the fracture had completely healed with no evidence of degeneration of the hip
joint. Dr. Masri said that the fracture had taken longer to heal than the
usual three to six months, contributing to ongoing pain and disability. Dr. Masri
concluded that pain experienced by October 2012 was primarily related to
deconditioning and that it would improve with an exercise based programme.
However, tenderness over the fixation devices was such that plate and screw
removal was recommended, followed by a vigourous exercise based strengthening
programme. He thought that Ranjbar had become tolerant to pain medications
which should be eliminated. Dr. Masri said that Ranjbar does not have a
permanent disability in his right hip. The doctor felt that Ranjbar needed
reassurance that his fracture had fully healed and that Ranjbar needed to get
physically active.
[62]
Dr. Ghannadi reported in September 2013 that ongoing hip pain was
mostly due to the malalignment of his hip after the injury. She reported that
Ranjbar was still unable to stand for more than a half hour, unable to walk
more than one block, and unable to sit for more than a half hour without
feeling pain. In testimony, the doctor clarified that she based this opinion on
an August 2012 report that showed that the hip remained displaced. This is
contrary to the opinion of Drs. Masri and Oliver who have superior credentials
on this issue and to whom Dr. Ghannadi deferred. Dr. Masris opinion was
that the fracture had completely healed and that there is not, nor was there
ever non-union, just delayed union. Dr. Masri did say that the lesser
trochanter was not quite where it was supposed to be but would not have
classified this as malalignment. Dr. Oliver said that the restoration was close
to anatomical. Dr. Ghannadi thought that another surgery might improve this
malalignment. However, both Drs. Masri and Oliver concluded that any further
surgery would be only to remove the fixation devices. Both orthopaedic surgeons
thought that Ranjbar should be exercising and that his present condition was
mostly due to deconditioning, an opinion that I accept.
[63]
Dr. Ghannadi had referred the plaintiff for shortness of breath and
difficulty walking in the fall of 2012. The plaintiff was diagnosed with
serious heart issues in November 2012. History taken at the time and accepted
by Ranjbar in testimony at trial was that heart related pain had been ongoing
and unchanged for seven years. This was confirmed by Dr. Ghannadi. He underwent
heart surgery in February 2013. It encouraged him to quit his 20 year smoking
habit and otherwise improve his lifestyle. He continues to take heart
medication. Ranjbar is also a diabetic and suffers from hypertension.
[64]
Ranjbar had been on crutches for a year after the accident. He still
walked with a cane at trial. He said that his right knee, thigh and hip were
still painful with increasing back pain. He cannot stand or sit for too long
and has trouble sleeping. He continues to take pain medication, now over four years
since the accident. He has been on anti-depressants. His son said that it has
been emotionally hard for Ranjbar living alone in Canada.
[65]
The plaintiffs ongoing pain confirms Dr. Masris opinion that Ranjbar
needs surgery to remove metal fixation devices still in his hip. His general
practitioner has told him that removal of the rods would resolve continuing
pain and discomfort. He is aware that the doctors have recommended this surgery
but he has refused to undergo it. When asked why, he offered multiple explanations:
he had heart surgery eight months ago, he suffers from iron deficiency, and
psychologically and emotionally he is not prepared for it. Dr. Ghannadi said
that it took considerable effort to convince Ranjbar to undergo heart surgery
due to fear.
[66]
The issue of whether and when the plaintiff should have engaged in
physiotherapy or other conditioning exercises is medically controversial.
Doctors at Prince Rupert Hospital recommended physiotherapy for Ranjbar upon
discharge. He went once. Ranjbars general practitioner and other doctors also
recommended physiotherapy and exercise from time to time. Dr. Blachut had
recommended it in June 2010 before he confirmed non-union of the fracture.
However, in October 2010 when non-union was confirmed, there was no specific
mention of physiotherapy. Dr. Hirsch said in his November 2011 report that
physiotherapy should not be undertaken until the source of pain generation had
been clarified. At trial, he said that physiotherapy should not have been
undertaken while there was a gap in the fracture, a situation certainly
apparent in October 2010. However, he also said that once union of the fracture
had been established, then a supervised programme of active rehabilitation
should occur. Dr. Hirsch thought that this could improve function. Dr. Masri
was of the opinion that physiotherapy for muscle strengthening could have taken
place before complete union. He also said that union had occurred by October
2012 and thought that most of Ranjbars pain afterwards was due to deconditioning.
He considered that a physiotherapy programme to improve walking and movement
generally could have occurred once the fracture had healed. If there was still
ongoing pain after that, then he recommended removal of the fixation devices to
ensure that Ranjbar was pain free. Once that was done, then vigourous exercise
should ensue. Dr. Oliver agreed with this opinion. Dr. Ghannadi agreed that
Ranjbar requires an active rehabilitation programme and reassurance that
Ranjbar did not suffer permanent injury.
[67]
Ranjbar has not undertaken any exercise or other conditioning programme,
explaining that he was too depressed and did not feel like doing anything. He
did not say that he could not afford it. However, Dr. Ghannadi testified that
she was unable to get Ranjbar into free physiotherapy at the north shore
hospital. The programme envisioned by Dr. Hirsch would take about three months
with visits to a kinesiologist two or three times a week at a cost of between
$80-100 per hour. Dr. Masri thought that a six-month programme would be
appropriate, with free physiotherapy available for 12 sessions after surgery to
remove the fixation devices. Dr. Oliver also thought that a six month programme
was appropriate.
[68]
When asked at trial about his low mood and depression, Ranjbar agreed
that there were many reasons for this including separation from family,
inability to return to Iran, and pain from surgeries. Dr. Ghannadi said that it
is common for refugees to experience low mood and depression and this applied
to Ranjbar.
[69]
When Ranjbar moved to Vancouver in January 2010, he lived first on
welfare and then obtained disability status. He resided with Reza Malayeri
(Malayeri), also a crew member of IRISL ships who had made a similar refugee
claim the year before. Malayeri looked after most household chores and assisted
Ranjbar with personal matters including translation. Ranjbar did some cooking
but was not motivated to do much and spent a lot of time watching Iranian
television. Malayeri said that Ranjbar often complained about pain and was
awoken in his sleep because of it. However, Malayeri said that Ranjbar got
better and better and eventually resumed personal care and cooking.
[70]
Ranjbar moved on his own after three years when Malayeris family
arrived from Iran. He continues to reside on his own and described himself as a
loner, not wanting to socialize or to deal with people. He said that he is
upset, unhappy and more and more isolated because most of his family remains in
Iran. For financial reasons, he has not applied to have them come to Canada.
His son lives in California but does not visit regularly.
[71]
In July 2010, the plaintiff started receiving provincial disability
benefits as a result of his condition related to the right hip fracture,
anemia, depression and anxiety, among other conditions. He has received
assistance benefits of $40,501.36. The plaintiff has not applied for any work
since arriving in Canada. He explained that, with his condition, nobody would
offer him a job. He said that if he was free of pain, he would seek work as a
hotel cook. However, he acknowledged that he would need to upgrade his English
and diversify his cooking from just Iranian food.
[72]
The plaintiff has not worked to enhance his English skills and appears
to lack motivation to do so. He had attended English classes for a month in
March 2010 but did not pursue them even though it was provided free. As a
further and perhaps more accurate indicator of motivation to learn English,
Malayeris report that Ranjbar would only watch Iranian television and
socialize with Iranian coffee shop friends is revealing. He completed a food
safe course that was in Farsi in 2012. He has not undertaken anything to
improve his skills since then.
[73]
A vocational assessment done in 2012 was based upon medical reports of Dr.
Hirsch that contained an uncertain diagnosis and long term prognosis for the
recovery of Ranjbars right hip. David Bruce based the report upon information
that there was non-union of the fracture and that the hip might not resolve in
the future. He was not in receipt of more recent medical reports and agreed
that improvement in Ranjbars medical condition would affect his opinion.
Ranjbar is limited by inability to speak, read or write English, limited
education, and few transferable skills. His English comprehension was less than
grade two level and his interests were limited to work as a cook. David Bruce
concluded that Ranjbar was not competitively employable and was unlikely to
return to the workforce regardless of whether there was improvement in hip
function as a result of further surgery. Unrelated factors hindering
employability include age, probable need to rely upon employer accommodation,
limited cooking skills, lack of local network, cultural barriers, non-accident
related medical issues, and severely limited English skills. These barriers are
cumulative. Bruce agreed that motivation to learn English and cultural comfort
played a role in willingness to learn English. In cross-examination, David
Bruce agreed that lack of English skill alone rendered Ranjbar not
competitively employable as a cook. Lack of Canadian work experience alone
would mean that it would take a while for Ranjbar to build up to the average
full time $26,878 yearly income of a cook. However, based upon Ranjbars
barriers to employment, he would likely be left to part time entry level or low
paying positions. Dr. Ghannadi also concluded that Ranjbar was not employable
considering his physical limitations and language barrier.
[74]
An English as a Second Language expert provided information to the court
about the availability of free English classes to refugees such as the
plaintiff. Certainly, there is a range of English learning options available to
Ranjbar. He would have to undertake about 20 weeks of classes to be able to
function in day-to-day English. This is not fluency. He would be hampered by
age, disability, and lack of motivation.
(f) Occupational Health and Safety
Expert Evidence
[75]
Harry Carruthers (Carruthers), a health and safety consultant, was
qualified to provide an opinion with respect to the management of safety
issues, including the safe operation of an automatic gangway and prudent
practice to warn users. He had limited experience with marine matters and with
federal jurisdiction, matters going to the weight to be given to his opinion.
He based his opinion, in part, upon the factual assumption that Garcia had
informed the ships security officer that the gangway was automated, that it
would go up automatically when the horn sounded and that, in such event, you
have to clear the gangway. Upon review of the evidence, I have concluded that
this conversation did not occur and so have placed Carruthers opinion in this
context. He was also not quite correct as to when the automatic mechanism was
triggered but understood when he testified that it was when the vessel moved
fore or aft. He did not know whether any marine terminal in British Columbia
brought together crew on vessels for a safety information session.
[76]
Based upon legislation, experience, and best practice, Carruthers
testified about management safety standards generally in the industrial
setting. He said that it was incumbent on the owner of the gangway to provide
sufficient information necessary to eliminate or control hazards to the health
and safety of persons at the workplace. The warning signs posted near the PRG
gangway identify a hazard when the gangway moves. If the hazard can be
eliminated through engineering, then no further action is required. However, if
the hazard is merely reduced, then the owner is obligated to develop, document,
and train personnel exposed to the hazard of safe operation procedures for the
equipment. Verbal information alone is not adequate and there should be written
information about the safe operation of the gangway including such information
as where to go when the equipment is to be vacated, when it is safe to access
the equipment after a warning sound, and what are the signals for vacating.
Training sessions or orientations to users supported by a checklist are common
and demonstrate diligence. Visitors such as officers and crew would be given an
orientation session with emphasis on the safe operation of the gangway and
emergency evacuation and security procedures. All of this is generally managed
by a safety committee.
[77]
Carruthers considered that the signage at the gangway was clear, if one
could read English. When the horn sounded, one was to clear the stairs. He
thought that Ranjbar would have been safe if he had gone either way after
hearing the horn. However, he did not know Ranjbars position on the gangway at
the time. Carruthers said that the instructions in this case were not adequate.
Positions of the Parties
[78]
The plaintiff claims that, by exposing the plaintiff to the dangers of
the automatic gangway and not warning him of those dangers, PRG and IRISL fell
below their respective standard of care and breached the duty each owed to the
plaintiff. PRG acknowledged that it owed a duty to Ranjbar to provide a
reasonably safe gangway and to warn Ranjbar of any unusual dangers. However,
while PRG has acknowledged that it owed a duty of care to seamen such as
Ranjbar who used the gangway, it has not admitted that the gangway posed an
unusual danger. PRG says that the fact that the gangway had been used daily by
thousands of individuals from countries all around the world without incident
is strong evidence that it was reasonably safe in its installation and
operation and strong evidence that it did not constitute an unusual danger.
[79]
With respect to IRISL and whether it owed a duty to the plaintiff in
this circumstance, both the plaintiff and PRG argued that IRISL should be
deemed to have had knowledge about the dangers posed by the automatic gangway
either through its ships that had previously visited the terminal or through
its agent at the terminal. As such, it had a duty to avert peril to its crew
from an unusual danger of which it knew or ought to have known.
[80]
Both PRG and IRISL ultimately say that each is absolved of any liability
because the evidence established that Ranjbar had accepted the risk with full
knowledge of the dangers involved and failed to take reasonable care for his
own safety.
Liability
[81]
The defendant, PRG, has conceded that it owed a duty at common law to
licensees such as seamen and others using the gangway. Indeed, it has been held
since 1868 that a dock-keeper who owns and maintains a gangway from shore to a
ship has a duty to all those lawfully using the gangway (Smith v. London and
Saint Katherine Docks Company (1868), L.R. 3 C.P. 326; London Graving
Dock Co. Ltd. v. Horton, [1951] 2 All E.R.1 at 5, 9 (London Graving Dock
Co. Ltd.)). Whether Ranjbar was a licensee or invitee was agreed to be of
no import as it is the nature of the duty owed to a lawful visitor that is
significant. It has also been held that wharfingers owe a duty to the owners of
ships tying up at their wharf to warn of dangers of which they know or ought to
know (London Graving Dock Co. Ltd. at 10, 25).
[82]
In turn, employers have a duty to take reasonable care for the safety of
their crew (Smith v. Austin Lifts Ltd. and Others, [1959] 1 All E.R. 81
at 87, 91 (Smith)). The duties of an employer which arise when the
employer sends his servant to work on premises occupied by someone else were
considered in Smith. If the employer knows of a dangerous condition, the
employer should go and see that the place is reasonably safe and then take
reasonable care to ensure that the crew is safe (Smith at 91, 94).
[83]
The nature of the duty is to take reasonable care that the premises are
safe from an unusual danger of which the occupier knows for those using the
premises in an ordinary and customary manner and with reasonable care for his
own safety (Norman v. Great Western Railway, [1915] 1 K.B. 584 at 592 (Norman)).
Reasonable care must be taken in all of the circumstances of the case to see
that users are reasonably safe in using the premises (Waldick v. Malcolm,
[1991] 2 S.C.R. 456 at 472; Stacey v. Anglican Church of Canada (Diocesan
Synod of Eastern Newfoundland and Labrador) (1999), 182 Nfld. &
P.E.I.R. 1, [1999] N.J. No. 275 at paras. 37-41 (N.L.C.A.) (Stacey)).
What might be safe for one person may not be safe for another. In Norman,
using a gangway as an example, the court said that the gangway had to be safe
for the class of persons who use it. Thus, an ordinary person might find a
narrow gangway without a handrail unsafe whereas as stevedore could use it
safely. Similarly, what might be safe for an adult might not be safe for a
child.
[84]
An unusual danger has been described as one that is not usually found
in carrying out the task or fulfilling the function which the [user] has in
hand (Stacey at para. 38; Rafuse v. T. Eaton Co. (Maritimes) Ltd.
(1957), 11 D.L.R. (2d) 773 at para. 18 (N.S.S.C.), [1957] N.S.J. No. 15 (Rafuse)).
In considering whether a danger is unusual, regard should be had to the nature
of the place and the apparent experience of the invitee (London Graving Dock
Co. Ltd. at 21). This concept of unusual applies to the class of persons
contemplated in Norman, so that what is usual for a stevedore accustomed
to negotiating the difficulties of a gangway may be unusual to other users of
the gangway who are also there to perform a function (London Graving Dock
Co. Ltd.). The gangway example used in London Graving Dock Co. Ltd.
was stated as follows at 9:
I am of opinion that, if the
persons invited to the premises are a particular class of tradesman, then the
test is whether it is unusual danger for that class. Therefore, if the occupier
supplies the sort of gangway which stevedores usually use, he has performed his
duty so far as stevedores are concerned, and, if a particular stevedore suffers
from a defective sense of balance and falls off the gangway, he cannot complain
of the occupier’s failure of duty. The sufferer knew the danger for him and he
must accept the responsibility of using a gangway which might be dangerous for
him because of his idiosyncrasy. But a gangway which is reasonably safe for
stevedores and which is no unusual danger for them, may well be an unusual
danger for another class of workman or for members of the public generally. So
much for "unusual" in relation to persons. A danger, however, may
also be "usual" or "unusual" in relation to the place. For
example, a quay is dangerous though it is not in daylight an unusual danger for
normal adults, but an uneven joint between two stones near the edge of the quay
may be an unusual danger to anyone, and is none the less an unusual danger
though it is not a concealed danger. I would not agree that a danger, which is
unusual in either of the ways I have suggested, ceases to be an unusual danger
because, through frequent visits to the place, it becomes familiar. In such a
case another question will arise, whether in fact the invitee had sufficient
notice, but the danger, in my opinion, remains an unusual danger. Though I
think it is possible to discriminate in a concrete case between a danger which
is unusual and one which is not unusual, no attempt to formulate a definition
of unusualness appears to me to be likely to succeed.
This is an objective test; it is not construed subjectively
based upon what a particular invitee found to be unexpected (London Graving
Dock Co. Ltd. at 5).
[85]
The fact that no claim had been made in respect of an injury caused by
operation of a device on the premises is relevant to whether something
constitutes a danger (Rafuse at para. 19). Prior safe use is a relevant
factor in determining whether premises are reasonably safe (Robson v. Trail
Bay Developments Ltd., 2009 BCSC 806 at para. 19, [2009] B.C.J. No. 1212 (Robson);
Duddle v. Vernon (City), 2004 BCCA 390 at para. 31, [2004] B.C.J. No.
1430 (Duddle)). While this is often considered as a factor within
discharge of the duty to take reasonable care that premises are safe, it also
goes to whether a danger exists and the knowledge of the occupier so as to
establish a duty of care. In Robson, the edge of a ramp posed an obvious
danger that could have been overcome by the plaintiff paying attention to where
she was going instead of searching for keys in her purse. In these
circumstances, the ramp did not pose an unusual danger.
[86]
Tolea
v. Ialungo,
2008 BCSC 395, [2008] B.C.J. No. 561 (Tolea) provides an example of a
hazard that did not give rise to a duty of care because the defendant was not
aware of the hazard and the user was accustomed to use of the hazard and,
knowing the nature of the hazard, did not consider it unsafe. Although stated
within consideration of discharge of the duty of reasonable care, Silverman J.
found at para. 64 that a gate at a stair landing that opened out contrary to
safety guidelines was not a hazard to the plaintiff who was a residential
tenant in the building because she regularly used the gate and considered it
safe, it was obvious that the gate opened out over the stairway, the defendants
did not know nor ought to have known that the gate was unsafe, and the gate had
been used for over 22 years without complaint or incident.
[87]
As
is apparent from Tolea and other cases, the defendant must know of the
danger or hazard (Childs v. Desormeaux, 2006 SCC 18 at para. 28, [2006]
1 S.C.R. 643; Nohr et al. v. Anderson (1968), 69 D.L.R. (2d) 698 at
para. 19 (B.C.S.C.), [1968] B.C.J. No. 191; Gorecki v. Linehan, 2013
MBQB 65 at para. 21, [2013] M.J. No. 74). If an employer knows of a danger
controlled by an occupier, there may be a duty to communicate with the occupier
about the danger to fully understand it and to go and see the danger to see if
the place was reasonably safe for use by its employees (Smith at 88).
Knowledge of other accidents arising from a danger goes to awareness of risk (Ryan
v. Victoria (City), [1999] 1 S.C.R. 201 at para. 51, [1999] S.C.J. No. 7).
[88]
If there is an unusual danger, reasonable care may be established by
showing that adequate notice was given of the danger. If warning of a danger is
adequate protection, then the duty would be discharged. In these situations,
full knowledge of the danger gives an assurance of safety. This is the duty to
warn of unusual dangers (Mitchell v. Canadian National Railway Co.,
[1975] 1 S.C.R.
592, [1974] S.C.J. No. 67 (Mitchell); London Graving Dock Co. Ltd.
at 6, 25).
[89]
All
counsel have agreed that there is no difference between the standard of care
required under the Occupiers Liability Act, R.S.B.C. 1996, c. 337 and
the common law of negligence for purposes of this case. It is not necessary,
therefore, to consider whether this claim falls within federal jurisdiction
only with respect to this negligence claim. The matter will be considered
within the common law of negligence. The main issue as described by PRG is
whether PRG discharged the duty upon it or met the requisite standard of care
in this case by providing signs and horns to warn of the danger posed by the
automatic gangway. In the case of IRISL, the main issue is whether it knew
about the danger posed by the gangway and failed to adequately warn its crew
about it.
[90]
Discharge of a duty owed is not a matter of perfection but of the taking
of reasonable care in all of the circumstances to see that an invitee is safe (Duddle
at para. 22; Robson at para. 11; Wright v. McArthur, 2005
BCSC 1797 at para. 29, [2005] B.C.J. No. 2882 (Wright); OLeary v.
Rupert, 2010 BCSC 240 at para. 43, [2010] B.C.J. No. 344 (OLeary)).
A defendant is not required to have done all that it could have done to prevent
an accident (Duddle at para. 22). The duty is not to ensure that an
invitee is safe but to ensure that he is reasonably safe (Wright at
para. 39).
[91]
The existence of warning signs is a factor to consider in determining
whether an occupier has fulfilled its duty (Arkesteyn v. Burgess, [1989]
B.C.J. No. 264 at para. 16 (S.C.) (Arkesteyn); Duddle).
However, a warning is only adequate to discharge the duty if the occupier
provides the invitee subjected to the risk or danger with sufficient detail
about the danger such that the invitee understands the full extent of the danger
and understands how to act to avoid the danger. In other words, the warning
needs to be fulsome (Smith at 91).
[92]
In Davidson v. Cumming Bros. Holdings Ltd., [1995] B.C.J. No. 396
(S.C.), the warning sign adjacent to a sidewalk that patrons had to pass to get
to go-karts said that persons using the karts did so at their own risk and that
long hair must be up. The plaintiffs long hair became caught in the moving
parts of the go-kart engine, causing injury. The plaintiff had not been on a
go-kart before. The trial judge found that the sign was an attempt by the
defendant to deal with a known risk but was ineffective because it failed to
convey to the reader the nature of the danger, which was that long hair could
become entangled in the moving parts of the engine. The signage failed to warn
of this risk and the risk was not one that would be apparent to a novice rider.
[93]
In Block v. Canadian Pacific Hotels Corp., 2007 ABQB 166, [2007]
A.J. No. 295, a sign saying, in three languages at one point, Caution, go
slow warned golfers in carts about a slope. A sign on the cart gave operating
instructions and a warning stating that failure to follow the instructions
could lead to serious injury. The plaintiff did not see the signs on the
walkway but would have seen the sign in the cart. Her cart accelerated when she
touched her foot to the accelerator, causing her to lose control and the cart
to fall into a ditch. The plaintiff was experienced with carts and hilly golf
courses. The court noted at para. 127 that a warning must be clear and
understandable as to the nature and extent of the risk and that the adequacy of
the warning is commensurate with the risk. The warnings on the cart were
sufficient to the risk and were clear and understandable as to the nature of the
risks. The warning about the slope was also adequate given that it was
relatively safe and easy and had been used countless times without relevant
incident.
[94]
Another factor to determine whether the defendant has fulfilled its duty
is the ease or difficulty and the expense of which the unusual danger could be
remedied (Arkesteyn at para. 18; OLeary at para. 40).
[95]
The prior safe record was one factor, but not determinative, in
determination of whether the duty of care had been satisfied (Arkesteyn at
para. 20; Duddle at para. 31; Robson at para. 19; Rafuse at
para. 19).
[96]
Safety measures taken after an incident are not an admission of
negligence. However, post-accident conduct is admissible as evidence
demonstrating that safety measures in place at the time of the incident were
insufficient to render the premises reasonably safe and may also establish the
ease or difficulty with which a risk may be avoided (OLeary at paras. 47-48).
[97]
In Duddle, Smith J.A. provided a useful contrast between the
facts of that case and the case of Gerak v. British Columbia (Minister of
the Department of Lands, Parks, and Housing) (1984), 59 B.C.L.R. 273 (C.A.)
(Gerak) to illustrate that a defendant cannot be found liable for
dangers known to the user or obvious to him or so commonly known that it can
reasonably be assumed that the user will be familiar with them and in
circumstances where safety precautions taken by the defendant are reasonable.
Both cases involved diving accidents at a public lake park. In Gerak, the
plaintiff had never been to the park before and did not notice the shallow
depth of the water because the area was extremely busy. Expert evidence was
that Gerak would have had reason to believe that diving was safe in the
absence of warning signs. Safety precautions that could have been taken such as
posting warning signs against diving, supervision by lifeguards, depth markers,
and a guard railing had not been undertaken. In Duddle, the plaintiff
was familiar with the pier, knew about a prohibition against diving from clear
and multiple signage warning of the danger, and there had been no diving
accidents at the pier since the signage was installed, ironically, after review
of the decision in Gerak.
[98]
In all negligence cases after a finding of breach of the standard of
care has been made, there is still the requirement of the plaintiff to show on
a balance of probabilities that the breach caused the injury that was sustained
(Simmons v. Yeager Properties Inc., 2014 BCCA 201 at para. 8,
[2014] B.C.J. No. 1079 (Simmons)). The defendants negligence must be
necessary to have brought about the plaintiffs injury. The plaintiff must
prove that, but for the defendants negligence, the injury would not have occurred.
In Simmons, the plaintiff had established that the owner of a bakery
breached the standard of care by failing to maintain a warning sign. However,
the plaintiff should have seen the white line on the step; she was not looking,
and did not see the sign in any event. In this circumstance, the appeal court
found at para. 14 that the breach of the standard of care did not cause the
plaintiff to fall as the sign would not have made a difference to her even if
the sign was readable.
[99]
Whether
there was contributory negligence of the user is a question of fact. A
plaintiff is under a duty to keep a proper lookout for his own safety and to be
aware of his surroundings (Robson at para. 11). The extent of any
awareness of the visitor to a danger is a relevant consideration (Stacey at
para. 31). Whether an invitee saw or heard the danger and his awareness of
dangerous conditions goes to contributory negligence (Mitchell; Stacey).
However, mere knowledge of a danger is not enough to absolve an occupier of
liability where such knowledge fell short of voluntary assumption of risk (Mitchell).
If a danger is obvious, then the user may be deemed to have voluntarily
assumed the risk (Stacey at para. 39). The knowledge must be sufficient
to avert the peril arising from the unusual danger; that is, full knowledge of
the nature and extent of the danger (London Graving Dock Co. Ltd. at 10;
Smith at 85, 87, 93). Lord Denning said in Smith at 93 that if
the plaintiff was in any way mistaken about the danger, so that the state of affairs
was more dangerous than he thought that it was, he can recover. The learned
jurist said it this way:
Put in homely fashion it comes to
this: If a man, faced with a dangerous means of getting across a gap, mistakes
the risk, saying to himself: I know it is a bit risky, but so long as I am
careful I shall be all right, he is under no disability. But if he truly
measures the risk, saying: No matter how careful I am, it is very likely I
shall fall and still goes on, he cannot recover. That was Hortons state of
mind. He fully appreciated the risk, indeed, he and his workmates had
complained of it, but still he went on. Whereas, in the present case, [the
appellant] tested the door–it seemed safe enough, he said–and only then,
when he had assured himself of its safety, did he go on. He did not fully
appreciate the danger and can recover.
[100] In Duddle,
the sole cause of the plaintiffs injury was his failure to take reasonable
care for his own safety in circumstances where he knew fully the nature of the
danger and assumed the risk in defiance of careful signage and other measures
taken by the defendant to protect against the danger that diving at the pier
posed.
[101] In Ryan,
the plaintiff was thrown from his motorcycle while attempting to cross railway
tracks when the front tire of the motorcycle became trapped in a gap running
alongside the tracks. The trial judge found that the plaintiff was not
contributorily negligent since his decision to cross the tracks when and where
he did was dictated by circumstances beyond his control and he acted in the
agony of the moment. This finding was upheld in the Supreme Court of Canada,
reversing the Court of Appeal which had found contributory negligence based
upon the plaintiff choosing to remain on the more dangerous of several possible
courses and so could not have acted in the agony of the moment.
[102] On the
facts as presented here, there are four questions to be answered in relation to
PRG. Did the gangway pose an unusual danger? If so, did PRG act reasonably by
warning users such as Ranjbar through signage and the horn? If not, did this
failure cause the plaintiff to fall from the gangway? Finally, was Ranjbar
aware of this risk and did he take reasonable steps for his own safety?
[103] In
relation to IRISL, there are four questions to be answered. Did IRISL know
about the danger posed by the automatic gangway? If so, did it adequately warn
its crew about the danger? If not, did this failure cause Ranjbar to fall? The
fourth question as it relates to contributory negligence of Ranjbar is the
same.
[104] Did the
gangway pose an unusual danger? Yes, it did. The automatic gangway was both
unusual and dangerous. It was unusual because none of the seamen who testified,
including Ranjbar, Salmannia and Malayeri, had ever seen such a gangway in all
of their combined years at sea around the world. Usually, a ship (and certainly
the Iran Mazandaran) used its own gangway to access a terminal. Usually, it was
continuously monitored and operated manually. Based upon this evidence, it is
concluded that the average crew member would not have expected the gangway to
rise automatically, especially with someone on it. Salmannia thought that
automatic meant that the ladder remained at all times on the ship deck. The
alarm cycle and sequence before lifting of the gangway was both unusual and
dangerous if not known. None of PRGs personnel who testified could interpret
the record of the alarm sequence exactly and could not explain why or when the
sequence was altered from the original operations manual. It was not obviously
visually apparent to either Ranjbar or to Salmannia that the gangway
automatically lifted.
[105] It is
appreciated that this gangway had been in use for 24 years without a known
mishap by PRG. However, there is no evidence that the gangway had ever been
specifically inspected for safety. The safety committee records of PRG do not
indicate consideration of this matter and the Ranjbar accident was not subject
to review. It is not known how changes to the vessel arrival interface
checklist came about. However, there must have been reconsideration as a result
of the Ranjbar incident.
[106] The manual
override on the gangway was not obvious so that someone could stop the gangway
from lifting if someone was still on it. There was no video or other equipment
to monitor the gangway from the security office or elsewhere. There was no
automatic locking gate to prevent access once the alarm sounded and the gangway
started to move. The stoppage of the alarm could give a false sense of security
that any danger had passed. Practically, once the gangway started to lift, it
could not be stopped. In this circumstance, the danger would be real.
[107] PRG
acknowledged this danger by placing the signs and using the horn to warn of
danger from movement of the automatic gangway if someone was on it. Whether
they were adequate is another question. The assistant maintenance
superintendent for the terminal admitted that the gangway was dangerous,
especially if one was on the ladder when it lifted. He had never attempted to
experience the ladder when the gangway lifted because of the danger.
[108] In these
circumstances, PRG owed a duty of care to users of the gangway such as Ranjbar
to warn of the unusual danger presented by the automatic gangway.
[109] Did PRG
act reasonably by warning users such as Ranjbar through signage and the horn?
No, it did not. The signs themselves were not adequate and were confusing even
to PRG personnel. The warning must be clear as to the nature and extent of the
risk. The signage referred to an automatic hoist and to clear the stairs.
The hoist lifts the gangway but reference to it in this context is unclear.
Throughout the trial, reference was made to the gangway as the significant
dangerous object, not to the hoist. Instructions given afterwards on the form
letter upon arrival refer to the gangway, not the hoist. Ranjbar had just
cleared stairs coming up the tower and had crossed the gangway treads. Had he
cleared the stairs? The sign fails to indicate that the gangway and ladder
would automatically lift regardless that someone was on it. The nature of the
risk, that the gangway could lift off the deck of the ship with you on it, was
not clear from the warning signs. It did not say that the gangway would lift or
that the horn indicates that the gangway was about to lift. Salmannia, who
could read and understand English, thought that automatic meant that the
ladder remained on the ships deck at all times. The direction to clear stairs
when horn sounding is ambiguous as to where to go and gives the sense of
safety once the horn stops. The lack of clarity is especially so for someone
who cannot read English, a foreseeable problem for ships crews from foreign
lands. This could easily have been overcome by a visual drawing of the danger
on the sign.
[110] There is a
further problem posed by placement of the signs. Ranjbar did not see them.
Should he have seen them? As he left the ship from the port side, the one sign
at the top of the ladder that faced in the port direction should have been
apparent, if Ranjbar could have read the sign. However, the other two faced in
the direction of someone coming onboard the ship and were below waist height.
Thus, if someone was following another, it could be missed. Ranjbar did not see
the signs with Heidar in front of him. The signs could easily have been placed
higher and double sided so to be more visually effective from both directions.
[111] The sound
of the horn was known by Ranjbar to commonly indicate movement of equipment
other than the gangway and was not in the nature of a siren or alarm which
would have been unique to the situation. When Ranjbar heard the horn, he looked
around briefly and saw no movement so thought that he was safe. Then, the
sequence of stoppage of the horn unreasonably gave a false sense that whatever
was to happen had occurred.
[112] There were
other measures that PRG could easily have undertaken to warn users about the
danger of the gangway automatically lifting, but it undertook none. A beacon
attached to the gangway as anticipated in the operations manual would have
helped to indicate a relationship between the horn and the gangway. None of the
visitors or employees at the terminal were informed or given instruction about
operation of the gangway so as to minimize the risk. It would have been easy to
include a warning about the gangway on or with the security pass that was given
to all crew members who were to leave the ship. The revision after this
accident of the written information conveyed to a ships officer upon arrival
at the terminal is indicative of the ability to have easily minimized risk by
informing ships personnel so that they could knowledgeably inform their crew.
[113] Did the
failure of PRG to adequately warn of the danger cause Ranjbar to fall from the
ladder? The answer is yes. If Ranjbar had known that the gangway would lift
automatically, raising the stepladder off of the deck of the ship, he would not
have waited while he threw down the backpack to Heidar and then proceed down
the ladder. Heidar did not change his conduct as a result of the signs or horn,
indicating that he, too, did not appreciate the danger. When the gangway
started to lift, Ranjbar did not know what was happening and did not know what
to do. Even if he had seen them, the warning signs were inadequate to transmit
the danger to him. Ranjbar was aware of dangers generally at the terminal and
took care, but relied upon others to inform him about specific dangers. He was
a new visitor to this terminal and was given a security pass, but was not told
anything about this gangway. The nature of the gangway as automatically lifting
regardless that someone was on it was not obvious. It cannot be said in all of
the circumstances that the plaintiffs misunderstanding of the signs and horn
was the cause of his injury.
[114] Did IRISL
know about the danger posed by the automatic gangway? No, it did not. The
specific nature of the gangway had never been brought to the attention of IRISL
by PRG or by anybody else, according to the evidence. PRG had no general
practice to do so and Garcia did not do so on the morning of October 26, 2009.
Can such knowledge be inferred on the assumption that some ships owned or
managed by IRISL may have stopped at the terminal in years past? First, it was
not proven in evidence what ships owned by IRISL stopped at the terminal in
past years. Exhibit 13 was insufficient for this purpose and Salmannia did not
shed more light on this list of ships. In any event, it is not known if the
gangway lifted off the ships at any time in those visits. PRGs practice of not
informing anyone of the danger other than through the warning signs and horn
was in place throughout this time. There is no evidence that any reports were
made to IRISL about the gangway on any of the visits or that anybody associated
with IRISL thought that the gangway was unusual or dangerous. This included the
independent contractor, Riley, who was hired to provide services while the Iran
Mazandaran was at the terminal. Riley knew the gangway and thought that he
understood the signage, but he had never been on the gangway when the alarm sounded
and had never received any specific safety information about use of the
gangway. There was no information attributed to IRISL that should have put it
upon inquiry. It is not unimportant to note here that both Heidar and the chief
officer had used the gangway before Ranjbar on the day of the accident but did
not suffer from any movement of either the gangway or the ladder. There is no
evidence that anybody on the vessel observed the gangway rise twice during the
day of October 26 or, that if it could be inferred that someone did, that he
would have known that the gangway operated automatically regardless if someone
was on it. IRISL was entitled to assume that the means of access and egress
from the ships by use of PRGs gangway was without unusual danger.
[115] Because
IRISL was not aware of the unusual danger posed by the automatic gangway, it
did not take steps to inform the crew as to how the gangway operated and what
each should do in the event that it started to rise automatically. Once IRISL
did learn this information after Ranjbars fall, it advised its crew
immediately. In these circumstances, IRISL cannot be faulted.
[116] Was
Ranjbar aware of the risk and did he take reasonable steps for his own safety?
He was not aware of the nature of the risk and could not reasonably have been
aware. In the circumstances, he took reasonable precautions for his own safety.
Ranjbar did not realize the full extent of the risk. He was a first time
visitor to the terminal and had received no information about the danger posed
by the automatic gangway. He reasonably thought that the gangway operated much
as any other gangway in the sense that he could not have expected that it would
automatically lift off the deck of the ship while he was on it. The physical
danger was worsened by the fact that he was precariously positioned on the
swivelling ladder when the gangway started to lift. Even if Ranjbar had seen
all of the signs, they were confusing and inadequate to convey the nature and
extent of the danger. Heidar, who could read English, took no evasive measures
when the horn sounded. Taking reasonable care for his own safety in these
circumstances did not require Ranjbar to inquire to Heidar about the signs in
the absence of any indication that Heidar sensed an unusual danger.
[117] In conclusion,
following careful consideration of all of the facts and the guidance of the
law, PRG is 100% liable for the injuries caused to the plaintiff.
Damages
(a) Non-pecuniary damages
[118] All
parties have agreed that $95,000 is an appropriate award for injuries that the
plaintiff suffered as a result of this accident, subject to mitigation.
(b) Past wage loss
[119] The
plaintiff maintains that he would have been able to earn income as a cook in
Canada if he had not been injured and claims past wage loss for over four years
in the amount of $100,000 based upon the expert evidence of what a cook would
earn yearly. PRG says that no amount should be awarded under this head of
damage because the barriers to Ranjbars employability in Canada were such that
his employment would have been very limited in any event of the injury and the
government assistance benefits that he received would be deductible from an
award of past income loss. IRISL adopts the position of PRG and says that any
award under this head of damage will be nominal.
[120] The
evidence of the vocational expert confirmed that Ranjbar faced considerable
barriers to employment in Canada regardless of the injury. These included his
minimal English skills, limited education, limited transferable work skills,
other health related issues that pre-dated the accident, limited cooking skills
for adaptation to the Canadian cooking scene, lack of Canadian work experience,
inability to access social networks and social services, cultural barriers, and
age. From the evidence, particularly Ranjbars testimony, it is concluded that
the plaintiff lacked motivation to learn English or to work in Canada,
regardless of the injury. He has had difficulty adapting to the Canadian
environment, again, regardless of the injury. The vocational expert said that
Ranjbar was not competitively employable in Canada regardless of improvement in
his hip. All of this is factored in to consideration of past wage loss.
[121] Welfare
and disability benefits that Ranjbar has received would be deductible from any
award for past wage loss (M.B. v. British Columbia, 2003 SCC 53 at
paras. 38-39, [2003] 2 S.C.R. 477; Kerpan v. Insurance Corporation of
British Columbia, 2006 BCSC 1752 at para. 16, 45 C.P.C. (6th) 294).
[122] Based upon
consideration of all of this, it is concluded that there was not a real and
substantial possibility that the plaintiff would have earned income as a cook
in Canada but for the injury. Any award for past wage loss would be minimal,
nominal. In the end, there is no award for past wage loss.
(c) Future income loss
[123] The
plaintiff states that he has proven that there is a substantial possibility
that he will suffer employment loss into the future as a result of his injuries
and may never be able to return to work. Calculating annual full time income
for a cook to age 65 and after application of a discount factor, the plaintiff
seeks $300,000 for loss of future earning capacity. PRG says that this amount
is excessive, improperly calculated and not supported by the evidence. The
plaintiff did not suffer a permanent injury and will suffer future income loss
of less than a year, at best. To this must be factored negative contingencies
that were applied to past wage loss so that the ultimate award under this head
should be nominal, if any. IRISL agrees with PRGs position.
[124] The
plaintiff must prove that there is a real and substantial possibility of a
future event leading to an income loss. Once this burden of proof is
discharged, then the quantification of that loss occurs (Perrin v. Lalari,
2010 BCCA 140 at para. 32, 3 B.C.L.R. (5th) 303, [2010] B.C.J. No. 455).
Another approach to future income loss would be to consider the capacity to
earn income and the loss of a capital asset (Hay v. Hofman, 1999 BCCA 26
at para. 64).
[125] An
assessment of future income loss in this case must be based upon the medical
evidence that the plaintiff would benefit from further surgery to remove the
fixation devices but that he does not have a permanent disability in the right
hip. After conditioning following surgical removal, Ranjbar would be physically
capable of return to full time work. This would be expected within a year following
surgery. From this evidence, it could be concluded that there is a substantial
possibility that the plaintiffs earning capacity has been reduced in the near
future but will have recovered within a year following surgery to remove the
fixation devices. In these circumstances, future loss of earning capacity is
limited. Ranjbar should be capable of return to full employment within a year,
leaving aside barriers to return to employment other than the injury.
[126] However,
the non-injury related barriers to employment are so considerable here that it
cannot be said that there is a real and substantial possibility of future
income loss because of the injury. It is extremely unlikely that Ranjbar would
have obtained employment as a cook in Canada even if the injury had not
occurred. He had little if not any capacity to work in Canada as a cook,
regardless of the accident. There is no suggestion that he was capable of or
should have looked for other types of employment.
[127] In these
circumstances, there is no award for loss of future earning capacity.
(d) Future care cost
[128] All
parties agreed that damages for costs of future care should be assessed at
$10,000, subject to mitigation.
(e) Mitigation
[129] Both
defendants maintain that the plaintiff has failed to mitigate his damages
because he has not undertaken the recommended surgery to remove the fixation
devices and he has not gone to physiotherapy or exercised. The defendants seek
a deduction of between 30-40%. The plaintiff asserts that the defendants have
failed to prove failure to mitigate and says that there were good reasons for
not undergoing the surgery or for participating in physiotherapy or exercise.
The plaintiff says that, in the event that it is found that the plaintiff did
fail to mitigate, the deduction should be in the 5-10% range.
[130] The
parties agreed on the applicable law. A plaintiff has an obligation to take all
reasonable measures to reduce his damages, including undergoing treatment to
alleviate or cure injuries (Danicek v. Alexander Holburn Beaudin & Lang,
2010 BCSC 1111 at para. 234, 8 B.C.L.R. (5th) 316, [2010] B.C.J.No.1575, (Danicek)).
The defendant has the burden of proof to establish that the plaintiff
unreasonably failed to mitigate his loss (Danicek at para. 235). When a
plaintiff has not pursued a course of medical treatment recommended by doctors,
the defendant must prove that the plaintiff acted unreasonably in avoiding the
recommended treatment and the extent to which the plaintiffs damages would
have been reduced if he had acted reasonably (Chiu v. Chiu, 2002 BCCA
618 at para. 57, 8 B.C.L.R. (4th) 227, [2002] B.C.J. No. 2537). The plaintiffs
financial circumstances are a proper consideration in assessing the
reasonableness of the plaintiffs efforts to mitigate his losses (Morgan v.
Scott, 2012 BCSC 1237 at para. 55, [2012] B.C.J. No. 1732; Robbie v.
King, 2003 BCSC 1553 at para. 38, [2003] B.C.J. No. 2318).
[131] With
respect to the recommendation for surgery, there were mixed opinions as to
whether Ranjbar should have had surgery before October 2012 to speed union of
the fracture. Based upon this and the fact that the fracture eventually healed
on its own, the plaintiff cannot be blamed for not undergoing further surgery
for this purpose. However, since October 2012 when it was certain that the fracture
had healed, the plaintiff said that he continues to experience pain. In this
continuing circumstance, Drs. Oliver and Masri both recommended that the
plaintiff undergo the simple surgery to remove the fixation devices in his hip.
By the time of Dr. Olivers second report in August 2013, it was clear that the
second surgery was required to relieve symptoms of pain from soft tissue injury
associated with the fracture. The plaintiffs general practitioner has
encouraged him to undergo this surgery. The plaintiff has refused.
[132] Up to
healing of the fracture in October 2012, there was mixed opinion as to whether
Ranjbar should have engaged in physiotherapy or exercises. However, the
evidence established that certainly by the time of union of the fracture in August
2012, physiotherapy and exercise should have been undertaken and that it would
have improved the plaintiffs deconditioned state. Drs. Hirsch, Oliver and
Masri all agreed that physiotherapy to improve conditioning could have occurred
after this time. Dr. Masri said that this would have reduced the plaintiffs
pain. Dr. Oliver agreed. From this evidence, it is concluded that the
recommended treatment after October 2012 was physiotherapy and exercise. The
plaintiff will require further physiotherapy and exercise after surgical
removal of the devices.
[133] From this
evidence, it is concluded that the doctors recommended that the plaintiff
participate in physiotherapy and exercise since October 2012. The doctors had
recommended the simple surgical procedure to remove the fixation devices by
August 2013. Both of these interventions would have reduced pain and
deconditioning. The plaintiff would have been expected to have fully recovered
within a year, that is, by August 2014.
[134] The
plaintiffs continuing refusal to undertake these recommended treatments is not
reasonable. He has undergone significantly more serious surgery quite
successfully. His general practitioner has a very good relationship with
Ranjbar and has been extremely supportive. His low mood is not sufficient
explanation in the absence of psychiatric diagnosis that his mental state is
such that the recommendations should not be followed. In any event, much of
Ranjbars emotional state since August 2013 cannot be attributed to the
accident, but to his failure to mitigate which has resulted in continuing
needless pain and discomfort. The cost of the physiotherapy is not a factor
after the recommended surgery but may have been a consideration earlier on when
Dr. Ghannadi tried to find free physiotherapy through the hospitals.
[135] The
defendants have proven that the plaintiff acted unreasonably in not going
through with recommended surgery to remove the fixation devices from his hip
and in failing to undertake physiotherapy and exercise. Both of these
interventions would have reduced the pain and discomfort, increased mobility
and function, and enabled the plaintiff to return to full activities sooner. If
the plaintiff had undertaken these treatments, he would have been almost fully
rehabilitated by the time of trial. The plaintiff has chosen to do nothing to
improve his situation.
[136] In these
circumstances, the damages awarded the plaintiff should be reduced by 15%.
Conclusion
[137] The
defendant, Prince Rupert Grain Ltd., was negligent in failing to adequately
warn the plaintiff of the unusual danger presented by the automatic gangway at
the Prince Rupert terminal. Prince Rupert Grain Ltd. is 100% liable for the
injuries caused to the plaintiff. Damages are assessed in the amount of $95,000
for non-pecuniary damages and $10,000 for costs of future care. There shall be
a deduction of 15% for failure to mitigate. The plaintiff is entitled to costs
on Scale B.
[138]
The action against the Islamic Republic of Iran Shipping Lines is
dismissed with costs to the defendant on Scale B.
Dillon J.
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The Honourable Madam Justice Dillon