IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160114

Docket: S133893

Registry:
Vancouver

Between:

Philip Gordon
Nerland

Plaintiff

And

Toronto-Dominion
Bank

Defendant

Before:
The Honourable Madam Justice Duncan

Reasons for Judgment

Introduction

[1]            
On December 14, 2012, Philip Nerland (the plaintiff) went to the
Yaletown branch of the Toronto-Dominion Bank (the defendant) to meet with Mark
Beirnes. The two men met in Mr. Beirnes’ office, then relocated to the
public area of the branch. The plaintiff sat down on a chair at the “sit down
wicket” while Mr. Beirnes went to another area of the bank. The plaintiff
alleges that as he leaned forward to take hold of some documents on the desk in
front of him, the chair went out from under him. The plaintiff fell to the
floor, striking his head, neck, elbow and shoulder. He sustained serious
injuries.

[2]            
The parties have agreed on damages. This trial is concerned with
liability.

[3]            
It was common ground at trial that the flooring in the Yaletown branch
is a mix of tile and carpet. The tile is primarily in the customer areas,
including at the sit down wicket, and the carpet is in the offices and the area
where the tellers stand.

[4]            
The sit down wicket is essentially a desk. The teller sits on one side
and has access to a computer, a PIN machine and a phone. While the area appears
to be designed at least in part for wheelchair accessibility, there is a chair
for customers facing the teller.

[5]            
There are 13 upholstered chairs with wooden legs in the branch. All have
hard plastic tips, or glides, affixed to the bottom of each leg. The glides
serve to protect the flooring. All but one or two of these chairs are used in
carpeted offices. One of the chairs is situated at the sit down wicket, where
the floor is tiled. At the time of the incident, there was no liquid or other
substance on the tile floor at the sit down wicket.

The Plaintiff

[6]            
The plaintiff is 61 years of age. He is a business consultant. The
plaintiff is 5’11” tall and weighed approximately 225 pounds in December 2012.
He had no medical problems at that time which affected his balance. He wore
glasses but was having no trouble with his vision. Apart from possibly taking a
sleeping pill the night before the incident, the plaintiff had no drugs or
alcohol in his system.

[7]            
On the day of the incident the plaintiff went to the defendant’s
Yaletown branch by pre-arrangement with Mark Beirnes. The plaintiff had been at
the branch before. It was well lit. The weather was overcast but not rainy.

[8]            
The plaintiff first met with Mr. Beirnes in the latter’s office,
then went out into the public area. Mr. Beirnes directed or indicated for
him to sit on a chair at the sit down wicket, adjacent to the teller wickets in
the branch. The plaintiff sat down. He leaned forward to pick up some documents
from the desk. They were closer to the far side of the desk. As he reached
forward the chair went out from under him. The plaintiff struck the right side
of his neck, elbow and shoulder on the desk. He does not believe he tilted the
chair deliberately.

[9]            
The plaintiff was taken by surprise when he fell. He may have lost
consciousness as a result for at most 10 or 15 seconds, but he cannot be sure. He
said that Mr. Beirnes appeared concerned and offered to call an ambulance,
but the plaintiff declined. The plaintiff got up, possibly with assistance from
bystanders. He said the bank manager, Ms. Lachocki, came over to him and
said words to the effect of “we meant to put a carpet down, this has happened
before”.

[10]        
Once the plaintiff got his bearings, he signed some documents and left
the branch.

[11]        
The plaintiff has been back to the defendant’s Yaletown branch since he
fell. On January 9, 2013, he observed the chair at the sit down wicket had been
placed on a mat or carpet.

[12]        
On cross-examination, the plaintiff could not recall if he was at the
sit down wicket to obtain bank drafts but did not disagree that could be true.
He did not recall if he pulled the chair out to sit down. The plaintiff said he
initially rested his back against the chair back and then moved forward to take
hold of the papers Mr. Beirnes put down for him.

[13]        
Counsel for the defendant referred the plaintiff to his examination for
discovery evidence where he said his torso was in the front half or two-thirds
of the chair. He agreed that was partly true, but clarified that initially he
sat farther back in the chair.

[14]        
The plaintiff said he sat with his forearms on the desk. He reached
forward for the documents with his right hand and had his left hand on the
desk. As he leaned forward the chair moved backwards. He does not know if the
back legs lifted off the ground.

[15]        
The plaintiff was not certain if he could have pulled the chair much
closer to the desk, as there is a panel of some sort in the way. He agreed he
could have stood up to reach the documents or waited for Mr. Beirnes to
return.

[16]        
Counsel for the defendant drew the plaintiff’s attention to his amended
notice of civil claim, which stated he leaned forward and the chair tilted so
the rear legs came off the ground. The plaintiff reiterated that he does not
know if the back legs had come off the floor. He had no recollection of the
mechanics of how the chair toppled, apart from the front legs slipping out from
under him. He agreed if he was just sitting in the chair, the back legs would
not lift.

[17]        
The plaintiff did not examine the chair after he fell. He agreed he
might have been embarrassed and certainly felt hurt. He had a sore elbow and a
sore neck and head. He hit his head in the fall and did not know the extent of
his injuries until later that day or the next day.

[18]        
The plaintiff maintained that he had a very clear recollection of what
the bank manager said to him when he was on the ground. He recalled Mr. Beirnes
looming over him while the manager spoke to him. The plaintiff disagreed with
defence counsel’s suggestion that the bank manager never mentioned putting a
mat down.

Mark Beirnes

[19]        
Mark Beirnes has worked at the Yaletown branch since November 2012. He
first met the plaintiff in March 2010 at the Bentall branch and had between
three and five dealings with him before the incident. He recalled the dealings
were primarily in his office though it was possible one meeting could have been
at the sit down wicket.

[20]        
The plaintiff came in to see Mr. Beirnes around mid-day with a
business partner. Mr. Beirnes took the plaintiff to his office and
discussed credit card options. The plaintiff required some bank drafts so they
proceeded from the office to the sit down wicket.

[21]        
Mr. Beirnes had the plaintiff sit down in the chair and went around
to the other side of the desk. The plaintiff had a list of drafts with the
dollar numbers, which Mr. Beirnes entered into the computer. The plaintiff
was seated forward with his elbows and arms on the desk, not seated back
against the back rest.

[22]        
After about five minutes, Mr. Beirnes got up to process the drafts.
He thought it possible that he had placed documents on the desk for the
plaintiff to sign before he got up. He described a crashing sound and hearing
the chair turn over and hit the ground, and then the plaintiff hit the ground.
He went back to see what had happened and saw the plaintiff on the ground. He
went around the desk to see if the plaintiff needed help getting up. Mr. Beirnes
did not offer to call an ambulance.

[23]        
The branch manager came out of her office right after the fall when the
plaintiff was on the ground, and some customers in the branch also came over.
Someone righted the chair and the plaintiff got back up and sat on it. Mr. Beirnes
thought the plaintiff looked surprised and shocked and he indicated he felt a
bit winded but declined any help. He did not appear to be injured, nor did he
appear confused, dazed or unconscious. To the contrary, he was alert. When he
got up he was back to normal and signed the documents.

[24]        
Shortly after the incident someone in the branch placed a mat on the
floor where the incident occurred. Mr. Beirnes said the mat is not there
now. He did not feel the matter warranted an incident report. He was not aware
of any prior incidents with chairs and no one had complained of them to him.
Bank policy requires an incident report if there is an injury or an incident
that warrants police, medical or fire department attendance. Safety and
security personnel must be notified. In this case it was the branch manager’s
decision not to file a report and Mr. Beirnes did not discuss the decision
with her. They did not talk about the incident until they were aware a lawsuit
had been filed in around July 2013. Mr. Beirnes agreed he had more or less
put the matter out of his mind and that his memory of events diminished over
time.

[25]        
Mr. Beirnes spoke with the plaintiff within a month or two of his
fall. The plaintiff said he had concussion symptoms. Mr. Beirnes did not
then think of completing an incident report. He did not discuss the plaintiff’s
injuries with the manager until after the lawsuit was filed. He agreed in
retrospect the discussion about the injuries should have led to an incident
report as well as efforts to retain any video of the incident from the bank’s
security company. Mr. Beirnes subsequently learned the security video had
been erased.

Karen Lachocki

[26]        
Karen Lachocki is the manager of the Yaletown branch. On the day of the
plaintiff’s fall she was in her office talking on the phone with a customer
when she heard a bang. She looked through her window into the branch and saw a
chair tipped over. She put her client on hold and left her office. When Ms. Lachocki
got to the sit down wicket the chair was upright and the plaintiff was
standing. She asked him if he was okay and he told her he was fine. The
plaintiff did not appear injured so she left him to resume her business with
the customer she had placed on hold.

[27]        
After the plaintiff left the branch, Ms. Lachocki looked at the
chair. It appeared normal to her. It is the same as a number of chairs the
Yaletown branch received in the summer of 2012 after renovations. Ms. Lachocki
said the chairs were never modified after delivery and there were no problems
with them before the incident with the plaintiff.

[28]        
Ms. Lachocki had a conversation with a staff member who suggested
or asked if a mat should be placed under the chair at the sit down wicket. She
said “fine”. Ms. Lachocki does not know if the mat stayed down as she
thought janitors or staff moved it. The last time she checked was in the last
month or so prior to trial and it was not there.

[29]        
Ms. Lachocki vehemently denied telling the plaintiff she was sorry,
that “it” had happened before and they were going to put a mat down. She was
not aware if the bank had a policy concerning admissions of fault in relation
to insurance coverage but denied there was any directive in that regard. Ms. Lachocki
denied a history of chairs tipping at the branch.

[30]        
The defendant’s policy concerning incident reports is to require one be
sent to head office in Toronto for police, robbery or medical emergency
incidents. In Ms. Lachocki’s view, the incident with the plaintiff did not
qualify for an incident report because he denied any injury. Her health and
safety staff member filed a report once when a staff member was injured by
jamming a finger in a drawer. Ms. Lachocki did not ask if the health and
safety member might have filed a report about this incident and she did not
check with anybody else.

[31]        
The branch has security cameras but they are angled at customers’ faces
and Ms. Lachocki did not think they would capture the area where the chair
was. She did not request a video of the incident until the branch was notified
of the lawsuit in the summer of 2013 because the plaintiff said he was okay.
The security company, Frisco Bay, only keeps security footage for 30 days.

The Defence Expert

[32]        
The defendant tendered Wayne Brox, an engineer, to give opinion evidence
in four areas:

1.       the standards governing
the design and stability of chairs;

2.       the standards governing
the slip resistance of tile floors;

3.       what is considered a slip
resistant tile floor; and

4.       to give
engineering analysis and opinion as to the degree to which the exemplar chair
can be tipped forward before it loses stability.

[33]        
Counsel for the plaintiff agreed Mr. Brox was qualified to give
expert opinion evidence in the first three areas but disputed his
qualifications to give engineering analysis and opinion about how far the chair
can be tipped forward before it loses stability. While I agreed with counsel
for the plaintiff that Mr. Brox has had no kinetic training and is not a
biomechanical engineer, nor has he viewed people actually using the chair in
question at the branch, I found that as a result of his training and experience
he could give opinion evidence in the fourth area.

[34]        
Mr. Brox’s opinion was based on a number of assumptions including:

·      
the plaintiff’s height and weight at the time of the incident;

·      
that the type of tile floor in the branch had not changed since
the incident;

·      
that the chair was about 8 to 12 inches away from the desk at the
time of the incident;

·      
that the plaintiff was seated in the front half to front third of
the chair seat rather than with his back resting against the back of the chair;

·      
that the plaintiff leaned forward to sign some documents and
believes the back legs of the chair came off the floor and slipped out from
underneath him;

·      
that the floor was dry and free of any other substances.

1. The Floor

[35]        
Mr. Brox visited the branch on October 23 and November 3, 2014. He
noted the floor was tiled with 12 by 12 ceramic tile with a flat and smooth
surface. It appeared to be in excellent and serviceable condition. Mr. Brox
measured the slip resistance of the floor with an English XL variable incidence
tribometer with a test foot made of neolite, a type of plastic.

[36]        
Mr. Brox was not aware of any statutory requirement prescribing the
slip resistance of floors or flooring in general. He noted the building code
requires that the surface of ramps, stairways and other means of egress be slip
resistant, but that term is not defined. Overall, a floor surface with a slip
resistance value of 0.5 or greater is generally accepted to be slip resistant,
although the science of slips and falls appears to support a slip resistance of
approximately 0.35 for normal ambulation. Mr. Brox measured the slip
resistance of the tile in the branch to be 0.64 in two directions (north and
east) and 0.65 in the other two (south and west).

2. The Chair

[37]        
The chair involved in the incident with the plaintiff was not
specifically marked or identified so Mr. Brox examined one of a number of
identical customer chairs from the branch. He described the exemplar chair as a
wood-framed, four-legged arm chair with an upholstered seat and back. A
manufacture date indicated it was manufactured by a Canadian company on June
13, 2012. Mr. Brox found the chair robust and sturdy.

[38]        
There are no statutory standards governing chairs, apart from
flammability, labelling or other similar requirements. There is a voluntary
standard through ANSI, the American National Standards Institute, which is
similar to the Standards Council of Canada. Since the chair did not break and
was not damaged, Mr. Brox found the only relevant ANSI standard to be the
one governing front stability.

[39]        
To test the chair’s stability Mr. Brox placed it on a level surface
and put an obstruction in front of the legs to prevent it from sliding forward.
Pressure of 135 pounds was applied to the seat while a horizontal force was
applied in an attempt to tip the chair over the obstruction. The ANSI standard
requires the chair to accommodate a horizontal force of 4.5 pounds. The chair Mr. Brox
tested accommodated nearly 18 pounds without tipping over, passing the front
stability requirement by a significant margin.

[40]        
Mr. Brox also conducted a series of tests with the chair and a male
of approximately the same height and weight as the plaintiff at the time of the
incident. The model sat with his buttocks against the back of the seat, in the
middle of the seat and at the front of the seat.

[41]        
When the model had his buttocks against the back of the seat, he was
unable to tip the chair forward.

[42]        
When the model sat with his buttocks in the middle of the seat he could
tip the chair forward and raise the back legs of the chair between 6½” and 9”
off the floor, or 18 to 25 degrees, without the chair tipping over. Once the
tip exceeded 9” the chair toppled forward and out from under the model.

[43]        
Finally, when the model sat with his buttocks near the front of the seat
he could intentionally tip the chair forward and raise the back legs from 5” to
8” without the chair tipping over, or 14 to 22 degrees. Only when the model
tipped the chair forward and the back legs came off the floor more than 8” or
approximately 22 degrees did the chair topple forward and out from under the
model.

[44]        
In Mr. Brox’s opinion, the chair was an inherently stable seat that
could not be tipped without external force. The action to tip or rock the chair
was not, in Mr. Brox’s opinion, effortless, and when a person is seated
properly a simple shift of weight will not normally cause the chair to tip. His
opinion was that the plaintiff tipped the chair so far forward it toppled out
from under him and the fall was not due to any defect in the chair itself.

[45]        
On cross-examination, Mr. Brox agreed that the model in the video clip
was aware the purpose of the testing was to tip the chair. The model had his
feet placed on the floor in a way that he could brace himself when the tipping
occurred. The model was also sitting upright in the chair with his hands close
to his body during testing, rather than with his forearms on the desk as the
plaintiff described.

[46]        
Mr. Brox agreed that using an inanimate object to test the chair’s
stability was different than using a live subject because it was more difficult
to test the force exerted by a live subject to tip the chair. Mr. Brox
conceded there was some fluidity to an accident of the kind the plaintiff had
and it could have happened in a fraction of a second without time to react. As
the testing went on, the model became more cognizant of the chair’s properties
and the dynamics at play. Mr. Brox did not test the slip resistance of the
glides on the bottom of the chair legs against the tile floor.

The Video Clips

[47]        
In addition to Mr. Brox’s measurements of how far the back legs of
the chair could come off the floor without tipping the chair, the video clips
illustrate the apparent effort required to raise the back legs of the chair off
the floor.

[48]        
When the model was seated with his buttocks against the back of the
chair, the chair is stable with all four feet on the floor.

[49]        
When the model moved his bottom to the middle of the chair, and moved
his upper body and feet in what is obviously an effort to tip the chair
forward, the back legs of the chair came off the ground and the chair tipped
forward.

[50]        
When the model moved his bottom to the front of the chair, the back legs
appeared to come off the ground somewhat more easily than when he was seated
with his bottom near the middle of the chair. To put it another way, the model
appears to exert far less effort to tip the chair forward when he has his
bottom at the front of the chair, as compared with when it is in the middle of
the chair.

Credibility and Reliability

[51]        
The plaintiff had no clear recollection as to how the chair came out
from under him. He leaned forward to reach for some documents and the chair
moved backwards. He did not know if the back legs had come off the floor. He
testified that Ms. Lachocki told him after he fell that it had happened
before and they meant to put a mat down. If that statement was actually made,
it would assist the plaintiff in proving the defendant had knowledge the chairs
were unsafe.

[52]        
I am not persuaded that Ms. Lachocki made any such statement.
First, she vehemently denied saying such a thing. Second, she struck me as a
rather terse individual who was unlikely to say anything more than was
necessary to ensure the plaintiff did not need medical assistance. Furthermore,
at the time of the fall she was on the phone with a customer and had put that
person on hold to check what had happened. I find it unlikely she said or did
anything more than the bare minimum to assess the situation given that Mr. Beirnes,
another bank employee, was present.

[53]        
It is somewhat surprising that neither Ms. Lachocki nor Mr. Beirnes
took any steps to document the incident, particularly after Mr. Beirnes
became aware the plaintiff was suffering from concussion symptoms a month or
two later. If either of them had observed the mechanics of the accident and
given a contrary account to the plaintiff’s, their failure to record the
incident might have affected the weight to be given to their evidence.

[54]        
Finally, Mr. Brox, the engineering expert, presented as an
objective witness in accordance with his duty as an expert, and made
appropriate concessions on cross-examination.

Findings of Fact

[55]        
The type of chair in question, as depicted in the expert report, appears
to be an unremarkable and stable piece of furniture. Based on the videos
tendered by the defendant, the chair would not have come out from under the
plaintiff unless he had his buttocks in the front half of the seat or farther
forward and moved it onto the front legs. Depending on how far forward the
plaintiff was seated, he would have to tip the back legs at least 8” off the
floor to cause the chair to come out from under him.

[56]        
I am not persuaded, having viewed the videos, that a person could tip
the chair without exerting conscious effort. Therefore, I find the plaintiff
was in the front half of the seat or farther forward and deliberately tipped
the chair forward onto its front legs to reach the documents Mr. Beirnes
had left on the desk at the sit down wicket.

[57]        
The question to be addressed next is whether the plaintiff’s fall is in
whole or in part the fault of the defendant.

Routes to Liability

The Occupiers Liability Act

[58]        
The plaintiff’s action is based on the Occupiers Liability Act, R.S.B.C.
1996, c. 337 [OLA] and, in the alternative, in negligence. Counsel
argued the defendant owed the plaintiff a duty under the OLA. Section 3
of the OLA provides:

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

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

(a)        condition
of the premises,

(b)        activities on the
premises, or

(c)        conduct of third parties
on the premises.

(3)        Despite subsection (1), an occupier has no duty of
care to a person in respect of risks willingly assumed by that person other
than a duty not to

(a)        create
a danger with intent to do harm to the person or damage to the person’s
property, or

(b)        act with reckless disregard to
the safety of the person or the integrity of the person’s property.

[59]        
Under the OLA, “premises” is defined as including land and
structures, but not the chattels therein:

"premises" includes

(a)        land
and structures or either of them, excepting portable structures and equipment
other than those described in paragraph (c),

(b)        ships and vessels,

(c)        trailers
and portable structures designed or used for a residence, business or shelter,
and

(d)        railway locomotives, railway
cars, vehicles and aircraft while not in operation.

[60]        
A threshold question in this case is whether the chair is a chattel, and
thus excluded from the scope of the OLA. There is a body of
jurisprudence supporting the view that the collapse of a chair does not fall
within the scope of the OLA, because a chair is a chattel. The most
frequently cited case is Wiley v. Tymar Management Inc., [1994] B.C.J. No. 3045
(S.C.), aff’d [1997] B.C.J. No. 770 (C.A.), where Madam Justice Allan held
that a chair breaking underneath a patron in a bingo hall did not give rise to a
statutory duty under the OLA:

[30]      In my opinion, sitting
in a chair is not an “activity” conducted on the premises within s. 3(2)
of the Act and a chattel such as a chair is clearly excluded from the
definition of “premises” in s. 1 of the Act.

[61]        
Howells v. Southland Canada, Inc., [1995] B.C.J. No. 397
(S.C.) and Visser v. Loblaws Inc. (c.o.b. The Real Canadian Superstore),
2001 BCSC 1781 followed Wiley.

[62]        
Counsel for the plaintiff submits this case is different from the
foregoing line of authority concerning chairs and the OLA, because it is
the interaction of the chair with the floor that grounds liability and the
floor is part of the premises. Furthermore, counsel submits this is not a case
about simply sitting on a chair, but about the plaintiff engaging in the
activity of reaching forward to sign documents in an area he was directed to
sit in by Mr. Beirnes. Viewed in that manner, counsel for the plaintiff
submits the situation is more analogous to cases under the OLA where the
use of a ladder was found to fall within the scope of activity on premises.

[63]        
Counsel for the plaintiff cites Lee v. Ghadery, [1999] B.C.J. No. 2934
(S.C.), where a Walmart employee climbed a ladder to retrieve some merchandise
for the plaintiff. The plaintiff held the ladder steady. The employee had
neglected to secure the ladder and the plaintiff was injured as a result. Mr. Justice
Josephson found the defendants liable at common law, but noted in dicta
that although the ladder, being a chattel, is excluded from the definition of “premises”,
the use of the ladder might constitute an activity conducted on the premises
within the meaning of s. 3(2)(b) of the OLA.

[64]        
The defendant provided the plaintiff with a chair to sit on to conduct
his banking business. There was no invitation, express or implied, to use the
chair for anything beyond that. I find in these circumstances the chair was a
chattel and thus outside the scope of the OLA.

 Negligence

[65]        
The plaintiff’s alternate argument is that the defendant is liable in
negligence for his injuries.

[66]        
In Agar v. Weber, 2014 BCCA 297, leave to appeal ref’d [2014]
SCCA No. 423, Madam Justice Smith for the Court said:

[29]      In negligence, the common law requires a plaintiff
to establish:

1.         a duty
of care to conform to a certain standard of care for the protection of
others against unreasonable risks. The duty does not extend to the removal
of every possible danger, rather the test is one of reasonableness: Ryan v.
Victoria (City), [1999] 1 S.C.R. 201 at para. 28;

2.         a breach of that duty by some act or omission by
the defendant; and

3.         the
breach of duty is the proximate cause of a plaintiff’s injury, meaning there
must be a nexus between the injury sustained by the plaintiff and the
defendant’s negligent act or omission: see Mustapha v. Culligan of Canada
Ltd., 2008 SCC 27; Hussack v. Chilliwack School District No. 33,
2011 BCCA 258 at para. 54.

[30]      The standard of care under the OLA and at
common law for negligence is the same: it is to protect others from an
objectively unreasonable risk of harm. Whether a risk is reasonable or
unreasonable is a question of fact.

[31]      Under the statutory test for occupiers liability,
the Court in Waldick v. Malcolm, [1991] 2 S.C.R. 456 described the
standard of care at 472:

…the statutory duty on occupiers is framed quite generally,
as indeed it must be. That duty is to take reasonable care in the
circumstances to make the premises safe. That duty does not change but the
factors which are relevant to an assessment of what constitutes reasonable care
will necessarily be very specific to each fact situation — thus the proviso
“such care as in all the circumstances of the case is reasonable”.

[32]      Similarly, in Ryan v. Victoria (City), the
Court described the standard of care for negligence as follows:

[28]      Conduct is negligent if it creates an objectively
unreasonable risk of harm. To avoid liability, a person must exercise the
standard of care that would be expected of an ordinary, reasonable and prudent
person in the same circumstances. The measure of what is reasonable depends on
the facts of each case, including the likelihood of a known or foreseeable
harm, the gravity of the harm, and the burden or cost which would be incurred
to prevent the injury. In addition, one may look to external indicators of reasonable
conduct, such as custom, industry practice, and statutory or regulatory
standards.

[Emphasis added by Smith J.A.]

[67]        
It is clear that the defendant owed the plaintiff, its customer, a duty
of care. The standard of care is one of reasonableness, not the removal of
every possible danger. The plaintiff maintains that the defendant’s act of
putting a chair with hard plastic glides on a tile floor where it would be
clearly foreseeable that a customer would lean forward while sitting created an
unreasonable risk of harm.

[68]        
As noted earlier in these reasons, I find that the plaintiff
deliberately tipped the chair forward onto its front legs to reach the
documents on the desk. Counsel for the plaintiff maintains that this is
relatively normal and foreseeable human conduct. As long as the front feet of
the chair remain stationary, a person can maintain balance. It is only where
the chair slips out unexpectedly that a person is likely to fall. It was this
unexpected slip, caused by the combined effect of the plastic glides and tile
floor, which caused the plaintiff to fall.

[69]        
The defendant says the chair is not an inherently unsafe object. There
is no evidence the defendant had experienced any problems or issues with the
type of chair on tile flooring. The tile floor was tested and found to exceed
slip resistance standards. The plastic glides on the bottom of the chair legs
are unremarkable. The chair tipped because its back legs were raised over eight
inches, as per the testing done by Mr. Brox. For the legs to be raised
that high, the plaintiff must have known or felt that the back legs were off
the floor and that must have required some effort. The defendant says the
plaintiff chose to use the chair in an unsafe manner to reach the papers on the
desk.

[70]        
The defendant further submits it was not foreseeable that an adult
seated on a chair would tip it forward onto two legs and injure himself. There
were no prior incidents of tipping proven, and there is no duty to warn of the
obvious that if you tip a chair forward onto its front legs, you run the risk
the chair could topple out from under you.

[71]        
As to the remedial measure of one of the defendant’s employees placing a
mat at the sit down wicket, the defendant submits that this is not proof that
such steps were necessary to make the premises reasonably safe and it was not
an admission of liability, per Anderson (Guardian ad litem of) v. Erickson
(1992), 71 B.C.L.R. (2d) 68 (C.A.) at paras. 31-32.

[72]        
Counsel for the defendant also relies on Cahoon v. Wendy’s Restaurant,
2000 BCSC 629. The plaintiff tripped when he stepped off a curb. He pursued an
action under the OLA and relied on the defendant’s subsequent remedial
measures of repainting lines to indicate the edges of the curb in the area
where the plaintiff fell to establish the area was not reasonably safe. Mr. Justice
Burnyeat observed:

[21]      Any
"remedial" steps taken by the defendants are not to be considered as
proof that such steps were required to make the premises "reasonably
safe." The defendants only have to make the premises "reasonably
safe." The defendants do not have to provide an environment which
guarantees against all possible accidents. Steps taken after an accident may
well only change an already reasonably safe area to an area which is more than
reasonably safe. On the other hand, steps taken after an accident may well
convert an unsafe area to an area which is then reasonably safe. What is done
after the fact is merely a factor to be considered in answering the question of
whether the area at the time of the accident was reasonably safe for occupants
of the premises.

[73]        
Burnyeat J. continued:

[26]      … However, even if I
wrong in my finding about where the accident occurred, I am still satisfied
that the ramp and the area immediately beside the ramp was also reasonably safe
for occupants such as Mr. Cahoon. With even a minimal amount of attention
paid, the edge of the sidewalk and the actual edge of the ramp were there to be
seen. The test to be applied is one of reasonableness not perfection. The
plaintiff was under a duty to be aware of his surroundings and I am satisfied
that there was nothing about the premises which would mislead the plaintiff in
any way. This accident could have been avoided by a modicum of awareness on the
part of the plaintiff. Instead, I find that the plaintiff was in a rush to get
[to] his meeting and to retrieve his vehicle from an unauthorized parking spot
and that he exited the door "on the run" and without the care and
awareness that was incumbent upon him.

[74]        
Finally, the defendant submits that if it is somehow liable, the
plaintiff was contributorily negligent and should be apportioned a much greater
degree of fault than the defendant.

Conclusion

[75]        
The defendant owed the plaintiff a duty of care, but I can find no
breach of it in the circumstances of this case. The chair provided to the
plaintiff to sit on at the sit down wicket was reasonably safe to sit on. I
found no evidence of any prior or subsequent incidents with similar chairs. The
placement of a mat under the chair at the sit down wicket at some point after
the plaintiff fell was not an admission of liability and I do not find it a
persuasive factor.

[76]        
I find the plaintiff exerted the effort required to tip the chair
forward onto its two front legs to such a degree that it toppled out from under
him. His action in tipping the chair forward caused the fall, not the plastic
chair glides. The plaintiff could have waited for Mr. Beirnes to return to
hand him the documents or he could have stood up to reach across the desk for
them. To prevent customers from tipping chairs forward (or indeed backwards)
the defendant would either have to fix the feet of the chairs permanently to
the floor or appoint an employee to closely monitor the activities of customers
while seated in chairs. The standard of care is reasonableness, not the
elimination of every possible danger.

[77]        
The plaintiff’s action is dismissed.

“Duncan J.”

_________________________________________

The
Honourable Madam Justice Duncan