Slip and fall claims are some of the most common personal injury cases in Canada and can involve complex medical and legal considerations, including the concept of occupier’s liability.
In a recent case before the Supreme Court of British Columbia, the plaintiff was injured when he slipped and fell on a piece of cardboard in the elevator lobby of a condominium complex. The defendants (the owners of the building and its maintenance companies) brought a motion for summary judgment to dismiss the plaintiff’s claim, denying liability under the Occupier’s Liability Act of B.C.
Plaintiff slips and falls on cardboard in condo complex elevator lobby
In Bailey v. The Owners, Strata Plan EPS4454, the plaintiff allegedly slipped and fell on a piece of cardboard on the floor of a condominium complex’s elevator lobby. The plaintiff claimed he didn’t see the cardboard due to poor lighting. He alleged the defendants (the strata corporation/property owners and the building’s maintenance company) breached their duty of care under the Occupier’s Liability Act by failing to properly inspect and maintain the premises.
In response, the defendants denied liability for the accident, contending they had inspected and maintained the premises as per their legal obligations. They filed an application seeking summary judgment, requesting the Court determine whether the defendants were liable for the plaintiff’s injuries.
Occupier’s Liability Laws in British Columbia
Section 3 of the Occupier’s Liability Act of B.C. imposes a duty of care upon occupiers of premises to take all care, reasonable in the circumstances, to see that any person will be reasonably safe when using the premises. The duty of care under section 3 applies to the condition of the premises, any activities on the premises, and the conduct of third parties on the premises.
The B.C. Court of Appeal has confirmed in previous decisions that the plaintiff does not prove liability simply by showing they were injured. There must be an act or failure on the part of the occupier to establish their liability. Additionally, the duty of care under the Occupier’s Liability Act does not require the occupier to remove every possible danger; instead, the test “is one of reasonableness, not perfection.” The purpose of occupier’s liability legislation is to protect a person from an objectively unreasonable risk of harm.
A critical element of the occupier’s liability is causation between the occupier’s failure to meet their duty of care and the plaintiff’s injuries. Per previous case law, causation is established through “rational conclusions that flow logically and reasonably from the evidence”.
Did a Condition or Hazard Cause the Accident?
In Bailey, the Court examined whether the plaintiff established the following elements of his claim:
- There was a condition or hazard that caused the accident; and
- The condition or hazard existed due to the defendants’ breach of duty as occupiers.
The Court explained if the plaintiff establishes the first element, the onus shifts to the defendants to prove that a reasonable cleaning and inspection system was in place, thereby refuting the second element.
Witnesses Observed Cardboard at Site of Fall
Concerning the presence of a condition or hazard that caused the accident, the defendants admitted the lights in the premises were not working on the date the fall occurred. However, they denied any cardboard being present. The plaintiff was also unable to unequivocally confirm there had been a piece of cardboard present. He recalled his foot giving out from under him but could not confirm why.
The plaintiff’s friend, Mr. Hong, lived in a unit in the condo building and inspected the area shortly after the plaintiff’s fall. Both Mr. Hong and his roommate, Mr. Shah, stated they saw cardboard on the ground.
“More Likely Than Not” Plaintiff Slipped on Cardboard in Elevator Lobby
The Court explained the plaintiff was “not required to prove with scientific precision what caused his fall”, and that while the Court could not speculate about the cause, it was “entitled to draw reasonable inferences that are based on the evidence, about what is more like than not to have caused the [f]all”.
The Court noted the plaintiff’s evidence was that he “felt something give way” under his foot as he stepped into the elevator lobby rather than rolling his ankle. Given the circumstantial evidence present, the Court concluded that it was more likely than not that the plaintiff slipped (and, as a result, fell) due to cardboard on the elevator lobby floor.
Defendants Breached Duty as Occupiers Given Broken Lighting, Cardboard on Floor
The Court turned to the defendants’ duties to maintain and inspect the premises as occupier. It noted Mr. Shah had contacted the defendants on multiple occasions to alert them of the broken lighting in the elevator lobby, including in the hours before the accident. The Court inferred the defendants did not have an adequate maintenance/inspection system to prevent an accident as they did not fix the lighting in response to Mr. Shah’s requests.
Further, the Court found the cardboard present at the accident location should have been cleared from the premises by the defendants if there had been a proper system in place.
Plaintiff Found to Be 50% at Fault for Accident
Although the defendants were found to have breached their obligations as occupiers under the Occupier’s Liability Act, the Court found the plaintiff was 50% responsible for the accident. The Court noted the doors through which the plaintiff entered the elevator lobby had widows. Had the plaintiff looked through the windows, he would have seen the conditions present, namely, that an elevator lobby with no lighting could potentially have hazards on the ground.
The Court found that as the accident was avoidable, the plaintiff would bear 50% liability for his fall.
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