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Occupiers' Liability

No Reasonable Inference = No Causation

 Jun 13, 2019 10:30 AM
by Fiona Brown

This action arises from a fall that occurred on January 14, 2014 on common property owned by the defendant Strata Plan LMS2286 (the “Strata”).  Strata retained the defendant Markic Development & Restoration Ltd (“Markic”) to perform some remediation work on its premises.  The plaintiff alleges that the remediation work created a hazard that caused his fall.

The plaintiff and defendants filed summary trial motions (aka summary judgment motions) so the issue of liability could be determined before their 12-day jury trial scheduled to commence in December 2019.  The plaintiff sought an order that the defendants were liable for the plaintiff’s injuries arising from the fall, while the defendants applied for an order that the plaintiff’s action be dismissed on the basis they were not liable for the plaintiff’s injuries.

After considering all of the evidence the court found in favour of the defendants and dismissed the plaintiff’s action.

Background

At the time of the fall, the plaintiff had been a tenant of a unit in one of the buildings owned by Strata for about a year.  At some point prior to January 2014 the bricks at the top of the stairs on a walkway (the “walkway”) had become uneven as a result of pressure from roots of a nearby tree.  It was anticipated that the tree that was causing the problem would eventually be removed and a permanent repair to the walkway would follow.   The Strata retained Markic to perform temporary remediation which consisted of removing the uneven bricks and replacing them with gravel (the “Temporary Remediation”).

On the morning of January 14, 2014, the plaintiff took the walkway to access his unit.  He ordinarily did not use this particular walkway and could not recall the last time, prior to the fall, that he had used it.  The plaintiff was ultimately found by a Markic employee, unconscious, and lying face down on the walkway some distance (an estimated 15 – 20 feet) away from the three steps on the walkway.  Nothing was on the ground where the plaintiff was lying that might have explained his fall.   Initially, it was thought that the plaintiff had had a heart attack or stroke.

Evidence

The plaintiff did not know what caused him to fall and “speculated” that he tripped on something as “that’s what makes the most sense.”   His theory is that he must have tripped on a “lip” between the loose gravel that was placed as part of the Temporary Remediation and the paving stones on the walkway.   The court was provided with photographs of this lip which depicted a small lip between the loose gravel and the paving stones; it was, according to the court, very difficult to determine the exact measurement of this lip from the photographs and “it could certainly not be characterized as pronounced.”

The Occupiers Liability Act

The plaintiff’s position was that the Strata owed him a duty of care under the Occupiers  Liability Act (“OLA”) to ensure he would be reasonably safe in using the premises and that Markic owed a common law duty to persons walking in the remediation area to carry out the Temporary Remediation in a manner that did not constitute a hazard.

The court noted that the fact the plaintiff could not recall the precise mechanism of his fall was not determinative and direct evidence of causation was not required, so long as the evidence as   whole led to the drawing of a reasonable inference of causation.

The court ultimately concluded that the evidence did not logically support an inference of causation for the following reasons:

  • The photographs show a slight unevenness in the surface of the walkway that could hardly be described as a recognizable risk, or even objectively unreasonable in terms of the degree of evenness that one might expect of a walking surface
  • The Temporary Remediation was in place for a number of months without incident or complaints about it
  • The plaintiff, himself, never reported his fall to the Strata until three months later and after he had moved out of his unit
  • There was no expert evidence in this case to support the inference that the condition of the remediation area was hazardous
  • The patient care hospital record quotes the plaintiff as reporting that the fall was due to him “tripping on an unanticipated step”

In light of these facts, the court was unable to conclude on a balance of probabilities that the plaintiff’s fall was caused by the Temporary Remediation as the evidence did not support the drawing of a rational inference of causation, and dismissed the plaintiff’s action

Take Away

The photographs produced made a significant impact on the court’s decision.  Her Honour was clear that the slight unevenness of the walkway did not represent a risk.  It did not help the plaintiff’s case that he could not provide any evidence as to what could have caused him to fall.  While the court pointed out that that, in itself, is not crucial, the evidence as a “whole” must permit the drawing of a reasonable inference on causation.  The above factors, taken all together, dissuaded the court from making such a finding.  One wonders if engineering evidence had been presented whether that would have been enough to sway the court in the plaintiff’s favour.

 See Barr v Strata Plan et al, 2019 BCSC 917 (CanLII)


Fiona Brown has an insurance law practice that has focused exclusively on insurance defence for almost 22 years. Read more ...


  

 

 
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