Personal injury following an accident can cause serious upheaval and significant financial hardship to families, especially in the case of serious injuries. When the injury occurs on someone’s premises, it may be possible to recover compensation from an occupier.
This article looks at the occupiers’ duty of care under the Occupiers Liability Act (OLA). We also look at a case before the Court of Appeal for British Columbia, in which a man who was struck on the head by a foul ball at a Little League baseball match brought a claim against the District of North Vancouver, Mount Seymour Little League Association and West Vancouver Little League Society.
Occupiers’ duty of care to see that people will be reasonably safe
Under the OLA, an occupier of premises owes a duty to take reasonable care to see that a person, and their property, will be reasonably safe in using the premises. The duty applies in relation to the condition of the premises, activities on the premises and conduct of third parties on the premises.
“Occupier” is defined as a person who is in physical possession of premises, or has responsibility for, and control over, the condition of premises, the activities conducted and persons allowed to enter the premises.
The OLA contains several exceptions. For example, section 3(3) states that an occupier has no duty in respect of risks willingly assumed by that person, other than a duty not to create a danger with the intent to do harm to the person or their property, or act with reckless disregard to the safety of the person or integrity of their property.
OLA codifies the common law duty of care; does not create presumption of negligence
Importantly, the OLA does not create a presumption of negligence against an occupier whenever someone is injured on their premises. An occupier is not expected to safeguard those entering premises from every conceivable risk of injury – they just need to take reasonable steps in the circumstances to ensure that persons are reasonably safe on the premises.
The injured plaintiff must still prove that some act or omission of the occupier caused the injury. 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.
Plaintiff was struck on the head at Inter River Park
In Rivers v North Vancouver (District), the plaintiff was struck in the back of the head by a foul ball while watching his son play Little League baseball at Inter River Park in North Vancouver. He suffered a head injury.
He brought a claim under the OLA against the District of North Vancouver, which owns the park and maintains the facility, and a Little League society and unincorporated association, whose teams play games at the park.
The park has two baseball diamonds, each with backstops with protective fencing. The plaintiff was watching a game on one of the fields from bleachers, meaning his back was turned on the game being played on the adjoining field. While someone yelled “heads up” when the ball left the field of play, the plaintiff did not hear it.
Trial judge concluded the plaintiff failed to establish an unreasonable risk of harm
The defendants relied on expert evidence from an architect with 25 years of experience in designing sports facilities. He opined that the facilities at the Inter River Park were consistent with industry standards, either meeting or exceeding the standards of baseball diamond facility design in the Lower Mainland and across Canada. There was also evidence that foul balls frequently cleared the backstop but only infrequently landed in the bleachers. There was no evidence of anyone ever being struck and injured by a foul ball at the park.
The trial judge found that the risk of non-trivial harm to a spectator sitting in the plaintiff’s location was not reasonably foreseeable. The judge noted the degree of inherent risk in the activity of baseball viewing, explaining that it was “a matter of simple common sense” that spectators needed to be reasonably alert to the possibility of foul balls leaving either diamond.
His Honour rejected the plaintiff’s argument that the defendants ought to have posted warning signs or covered the bleachers, noting that they were not required to take all conceivable measures and that these particular measures were uncommon for Little League games.
Court of Appeal agrees, dismissing the plaintiff’s claim
The plaintiff argued that the trial judge erred by considering the known risks associated with attending a baseball game as a spectator. The plaintiff claimed that the defence in section 3(3) of the OLA, whereby the plaintiff willingly assumes a risk, needed to be proved by the defendant and only applied where the plaintiff assumed both the physical and legal risk involved in the activity.
Justice of Appeal Fitch disagreed with the plaintiff’s argument. His Honour said that the trial judge was not addressing the defence in section 3(3), but simply correctly considering all the circumstances, which was necessary to determine what constitutes reasonable care. As such, the judge was right to consider the inherent risk, known to a reasonable spectator, that a baseball would be fouled over the backstop. His Honour concluded:
Assessing the known risks inherent in an activity, whether it be watching a baseball game as a spectator or playing golf, along with the customs a reasonable person participating in the activity would know were in play to ameliorate those risks, whether it be shouting “heads up” or “fore”, are contextual factors that inform whether an occupier has created an objectively unreasonable risk of harm.
The Court of Appeal dismissed the plaintiff’s claim.
Contact Meridian Law Group in Vancouver for Representation in Personal Injury Claims
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