Causation: The Plaintiff s Burden

Transcription

1 Causation: The Plaintiff s Burden Prepared by Romany Benham-Parker

2 When a Plaintiff slips, trips or falls in a retail or service setting and sustains an injury, there may be an erroneous perception that the slip or trip itself is proof of the occupier s negligence. Plaintiffs, and/or their counsel, may zealously argue that the occupier is 100% liable, regardless of whether the plaintiff is aware of what caused the accident. Such brazenness may ultimately be harmful to a Plaintiff s case and can result in a matter proceeding to trial that ought to be resolved at an early stage, either on a risk allocation basis or on a consent dismissal. It is important for counsel, and their clients alike, to be aware of the burden that a plaintiff must establish to establish causation. Starting Point Causation is established where the plaintiff proves on a balance of probabilities that the defendant caused or contributed to the injury. The general test for causation is the "but for" test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras ; see also Resurfice Corp. v. Hanke, 2007 SCC 7. As held in Athey, it is important to note that it is unnecessary for a plaintiff to establish that the defendant's negligence was the sole cause of the injury. In slip-and-fall type cases, the but-for test is predominantly the test for causation that a court will apply in determining liability. Court's Ability to Draw an Inference In Burnett v. Canada Safeway Ltd., [1983] B.C.J. No. 1073, aff d [1984] B.C.J. No (C.A.), the court determined that the defendant was liable by way of drawing an inference. The plaintiff slipped and fell in the defendant s supermarket. There was no direct evidence that water was present on the supermarket floor at the time the plaintiff slipped. The trial judge inferred the presence of water from the fact that an employee was spraying vegetables with water near where the accident occurred, at the time of its occurrence, and from the plaintiff s account of the fall, which did not suggest any other possible cause. The trial judge accepted evidence that the nozzle used by the Safeway employee could result in small amounts of water being on the waxed floor. The trial judge further accepted that the plaintiff was wearing reasonable shoes and that she was using a buggy, which ought to have provided further support. With these findings, the trial judge found that the only reasonable explanation was that there was a spot of water on the floor that caused the plaintiff to fall.

3 2 - The Court of Appeal agreed and the Plaintiff's claim was ultimately successful. Speculation versus Inference It is now well established law in British Columbia that a court may draw a reasonable inference from the evidence to establish causation. However, the court may not go further and speculate as to the actual cause of a Plaintiff's accident. If speculation is required, then the Plaintiff's claim ought to fail. In Lansdowne v. United Church of Canada, 2000 BCSC 1604, the defendant brought a summary trial application seeking dismissal of the plaintiff's claim. The plaintiff fell on a flight of stairs in the defendant church. She did not know what step she had fallen on, but she attributed the fall to the condition of the stairs. Approximately one week after the fall, a friend of the plaintiff went to the church and noticed fraying carpet on the bottom step. The plaintiff alleged that this fraying carpet was the cause of her fall. The defendant church argued that the plaintiff had adduced no evidence on causation and that her claim ought to be summarily dismissed. 22 The Court cannot presume negligence on the part of an occupier of premises: Bauman v. Stein, supra, at p Nor can it presume that some act, or failure to act, on the part of the occupier caused the plaintiff to fall: Vandergaast v. Atterton [1988] B.C.J. No (C.A.). 23 In my judgment, on the evidence before the Court here the Court would have to resort to speculation in order to find that Ms. Lansdowne's fall was caused by the loose threads on the bottom step of the stairs or some other defect in the carpeting on those stairs. This it must not do. According to Ms. Duggan, when she saw the threads one week after the accident they were coming out over the bottom step. Ms. Lansdowne, however, does not know on which step she tripped or where on the stairs she started falling. At best both she and Ms. Lansdowne are able only to advance a theory that in some way Ms. Lansdowne's sandals got caught up in the loose threads and that as a result she tripped and fell. [Emphasis Added] On this basis, Mr. Justice Scarth held that there was no evidence as to the cause of the plaintiff's fall, nor was there any evidence to establish that the carpeting posed a risk or that the defendant breached any duty of care to ensure that persons such as the plaintiff were reasonably safe on the premises. In Zantvoort v. Welyk, 2003 BCSC 995, Madam Justice Dorgan considered a similar fact situation as in Lansdowne. In Zantvoort, the plaintiff was a realtor who was showing the defendant s a home to

4 3 - clients. The plaintiff was able to navigate the stairs going up but subsequently fell on her descent. She alleged that her fall was caused by clutter on the stairs in one of two ways; either she slipped on the clutter, or the clutter distracted her, causing the fall. The defendants argued that the court could not resort to speculation and that the plaintiff must prove that the premises were unsafe and that the hazard caused the injury. The plaintiff submitted that it was open for the court to infer causation. Madam Justice Dorgan accepted that causation could be inferred in complicated matters, such as malpractice cases where proof lay with the defendant, or with claims where it would be a practical impossibility to establish causation. However, any of importance to any slip-and-fall litigation, Madam Justice Dorgan held that this type of case met neither of these requirements. In a simple slip and fall type case, the plaintiff was not entitled to the requested inference. Accordingly, the plaintiff could not meet her burden and her claim was dismissed. In Van Slee v. Canada Safeway, 2008 BCSC 107, the plaintiff slipped near the customer service desk of a grocery store in North Vancouver. The weather outside was rainy. The plaintiff did not know what caused her fall and assumed that she slipped on an accumulation of water. The plaintiff brought a summary trial application to determine liability. The defendant conceded it was an occupier for the purposes of the Occupiers Liability Act, RSBC 1996, c 337 (the Act ). The defendant admitted to having sweep logs but that these had been sent to the head office and could not be located. As such, the court could not determine whether the defendant was following its sweep procedures on the date of the accident. The plaintiff conceded that the defendant had a maintenance system in place but submitted that based on this evidence, the system of maintenance and inspection had clearly broken down prior to the accident. The evidence for the defendant was further hindered by the fact that the defendant s employee, who had be situated at the customer service desk, did not notice whether there was water on the floor at the time of, or immediately after, the plaintiff s fall. Relying on the holding in Burnett, the plaintiff argued that there was no other reasonable explanation for why the plaintiff slipped and fell. Justice Cohen disagreed, holding: [31] The law is clear in this area, the Court must not speculate. The plaintiff must prove: first, what condition or hazard caused her slip and fall; and, second, that the condition or hazard existed due to a breach of duty by the defendant. I find that as the plaintiff cannot prove the former, thus she cannot prove the latter.

5 4 - [Emphasis added] Despite the shortcomings in the defence evidence, the Plaintiff's inability to state that she had seen water in the area that she slipped was fatal to her case. Van Slee established the above noted two-part test that a plaintiff must meet to establish liability. In Charlie v. Canada Safeway Ltd BCSC 618, aff d 2011 BCCA 202, the plaintiff slipped and fell beside a display of cut flowers. As she was falling, she knocked over a bucket filled with water. After her fall, there was considerable water on the floor. The plaintiff submitted that she had been wearing shoes with good traction and that, while she had not observed a substance on the floor prior to falling, the flower buckets were a good source of water. She asked that the court draw an inference that water was on the floor. Both parties agreed that liability could be determined by summary trial. The chambers judge refused to draw an inference and found that the Plaintiff had not proven the existence of a hazard. The Court of Appeal agreed, holding that the Plaintiff was unable to establish the existence of water on the floor prior to her fall, which was fatal to her claim. The Plaintiff also contended that different standards of inspection must be met for situations involving inherently unsafe conditions. The Court of Appeal disagreed, stating: [18] The plaintiff says, further, that the chambers judge erred in finding that the sweep and inspection policies of the store were adequate to meet the requirements of the Occupiers Liability Act. She contends that there are two types of occupiers liability cases: due diligence cases and unsafe conditions cases. She accepts that in due diligence cases, a system such as the one in place in the case before us would satisfy the requirements of the Act. She says, however, that where the occupier has created an unsafe condition, there is a greater duty to take care to protect visitors to the premises from risk. In support of this argument, she cites Elder v. Westfair Foods Ltd., 2001 ABPC 94 (CanLII) and Stonechild v. Westfair Foods Ltd., 2001 SKQB 466 (CanLII). [19] I do not agree with the plaintiff s contention that different standards of care apply to different types of hazards on an occupier s premises. The Occupiers Liability Act establishes a single standard of care, a duty to take that care that in all the circumstances of the case is reasonable to see that a person will be reasonably safe in using the premises. While the extent of a danger posed by any particular hazard will obviously be an important factor in assessing the reasonableness of an occupier s response to it, I do not think that it is helpful to define different types of hazards that entail different standards of care. [20] The evidence in this case did not establish that the flower display posed any particular danger while it was conceded that it was possible for extensive drips to occur, the experience of the store had been to the contrary. The amount of water that dripped from the display had never posed a hazard, and the plaintiff did not lead expert evidence to suggest that the flower display was unusually dangerous. In the circumstances, it would have been difficult for the chambers judge to reach any other conclusion than the one he did, in fact, reach that the system in place to deal with

6 5 - slipping hazards was an adequate one that complied with the standard of care prescribed by s. 3(1) of the Occupiers Liability Act. [Emphasis Added] In Druet v. Sandman Hotels, Inns & Hotels Ltd., 2011 BCSC 232, the plaintiff slipped in a Sandman Hotel's lobby. It was raining outside and she had crossed a mat while she entering the lobby. She was wearing 2-month old running shoes, which were wet from being outside. She stepped on the tile floor and slipped. She admitted that she did not know if there was water on the floor where she fell. There was evidence of some water being on the floor but not exactly where she fell. The plaintiff argued that Justice Sopinka s holding in Snell v. Farrell [1990] 2 S.C.R. 311 ought to apply: evidence adduced by the plaintiff may result in an inference being drawn adverse to the defendant. Whether an inference is or is not drawn is a matter of weighing the evidence. During the course of the trial, the court heard and ultimately accepted expert evidence that the tile floor was unacceptably slippery while wet. The court further accepted that the floor was unacceptably slippery for people wearing running shoes, such as those worn by the plaintiff, when they were wet. On this basis, Justice Savage determined that the defendant was liable. He then considered the defendant s system of maintenance and inspection and found that the system was inadequate as it was based on keeping a lookout, rather than on regular inspections. Notwithstanding these findings, Justice Savage ultimately found the plaintiff was unreasonable in not wiping her feet on the rubber mat while entering. As such, he apportioned liability equally. In Fulber v. Browns Social House Ltd., 2013 BCSC 1760, the defendant brought a summary trial application seeking a dismissal of the plaintiff's case. The plaintiff fell at the Browns Social House located in Victoria. She had consumed 3 glasses of wine over a 3-hour period and was wearing 4 ½ inch stiletto heels. The restaurant had unwaxed hardwood floors. The plaintiff fell near the bar servery. At her examination for discovery, the plaintiff admitted that she did not notice anything on the floor where she fell, nor did she notice anything on her clothes. Rather, she inferred something was on the floor because she slipped. In support of the summary trial, the defendant relied on an affidavit from a server that deposed to constantly be in the area where the plaintiff fell and that if she noticed a spill, it would have been cleaned up immediately. Likewise, both the bartender, working on the night of the accident, and the owner, inspected the fall area and didn t see any moisture.

7 6 - The court accepted that the plaintiff had sustained significant personal injury. The plaintiff s counsel argued that the summary trial application was premature and that further investigations were required. He further argued that the credibility of the owner was an issue, which rendered the matter unsuitable for determination through summary proceedings. However, the evidence at the summary trial was that in the 2 ½ years since the accident, the alleged further investigations had not been completed. Madam Justice Gray found that there was no realistic basis that the plaintiff would be able to locate a witness if the summary trial was not allowed. On the basis that the Plaintiff could not state that she knew what caused her fall, the plaintiff s claim was dismissed with costs payable to the defendant. In Kerr v Global Investments House Inc., 2014 BCSC 1544, the plaintiff claimed to have slipped on the landing while leaving the Greenbrier Hotel in Vancouver. The hotel landing area was preceded by steps that led up from the sidewalk. The plaintiff testified that he believed the landing area where he lost his footing was wet, but he could not confirm whether he actually slipped on water or that the tiles themselves were slippery. The Plaintiff s friend testified that he saw a maintenance employee using a hose to spray the exterior of the building and the steps leading to the landing. The defendant submitted that its maintenance person was not using a hose, but was rather using a watering can to water two large potted plants, which was supported by the front desk clerk s evidence. The maintenance person was no longer an employee and was not called to give evidence. The Court accepted that it was more likely than not that the employee was using a hose near the steps. However, Madam Justice Warren determined there was insufficient evidence to establish that water was on the landing itself. As such, Madam Justice Warren was unwilling to speculate as to the presence of water on the landing. Given this holding, it is unclear whether the earlier holding in Burnett ought to be given much weight. Arguably, if Burnett can be relied on at all, it is only appropriate in situations where there is an abundance of evidence to establish that a hazard is the only possible cause of an accident. In Kerr, the defendant obtained an expert, who testified that the landing was not excessively slippery, either while dry or while wet. The expert further opined that the plaintiff s version of how he fell was inconsistent with the physics and biomechanics of a slip and fall. Madam Justice Warren held that even if it was established that the defendant breached its duty by failing to warn of an unsafe condition (i.e. water on the tiles), the plaintiff must still prove on a balance of probabilities that the

8 7 - unsafe condition caused the fall. The court determined that there was insufficient evidence to show that the landing was unreasonably slippery or that this caused the plaintiff s fall. In finding that the plaintiff had failed to prove his case on a balance of probabilities, Madam Justice Warren stated at paragraph 77: While causation need not be determined by scientific precision, the court cannot speculate. Plaintiff s Knowledge of Unsafe Condition In Simmons v Yeager Properties Inc., 2014 BCCA 201, the plaintiff was injured as a result of a fall from a patio adjacent to the front entrance of a bakery owned and operated by the defendants. The wooden patio was raised from the concrete landing (in accordance with applicable building codes), and there was a white stripe painted along the top and side edges of the patio before the landing. There was also a sign visible from the patio that read WATCH YOUR STEP PLEASE. The words watch and step were faded and difficult to read. However, the plaintiff admitted that she was not looking at the sign, nor did she see it, prior to her fall. At trial, the judge found that the patio step presented a potential hazard, and that the unreadable sign and white stripe were not sufficient to discharge the occupier s duty under the Act. The court found that the owners did not have a system of inspection and maintenance with respect to the sign sufficient to refute the breach, but decided that the plaintiff was mostly at fault for her injuries for failing to watch where she was walking. The judge apportioned liability 75% against the plaintiff and 25% against the defendant. On appeal, the Court of Appeal overturned the finding against the defendant on the basis that even if the sign was readable, it would not have made a difference since the plaintiff testified that she was not looking in that direction and did not see the sign at all. The unanimous Court of Appeal held that the plaintiff failed to show that but for the defendant s negligent act, the injury would not have occurred. In Zary v Canada Mortgage and Housing Corporation, 2015 BCSC 1145, the plaintiff claimed for damages when she slipped and fell on the wet floor of a washroom located in the Granville Island Public Market. The court accepted, and the defendants witnesses did not dispute, that there was some water on the floor of the washroom.

9 8 - Causation was not the main issue in this case. The defendants, who were the owners and operators of the Market, submitted that they were not liable because they had a reasonable scheme in place for monitoring and cleaning up any potential hazards in the Market. Specifically, they maintained a regular schedule for cleaning the washrooms on 2-hour intervals and a process for dealing with unusual events such as a water leak. The defendants further argued that it would be wholly unreasonably to impose a standard of perfection requiring it to maintain the floors in a dry state at all times. Mr. Justice Skolrood held that the maintenance schedule was reasonable in the circumstances. In dismissing the plaintiff s claim, he held that the system in place minimized hazards and concluded at paragraph 57: Given the nature of the business carried out at the Market and the volume of foot traffic that passes through the Market, particularly on weekends, it is inevitable that there will be some moisture on the floor of the public washrooms at any given time. However, absent evidence that any degree of dampness renders the floors in the bathrooms unsafe, the mere presence of water does not in my view constitute an objectively unreasonable risk of harm. This is particularly so given [the plaintiff s] knowledge that the floor in the washroom was often damp. The court noted in this case that using absorbent mats would have been prudent on the part of the defendants, but ultimately concluded that the absence of such measures did not constitute a failure to meet the duty set out under the Act. The standard of care for an occupier is one of reasonableness, not perfection. Justice Skolrood s comment about the Plaintiff s previous knowledge that the floor is often damp does bring causation into issue. Any astute Plaintiff s counsel will try to distinguish Zary for any claimants that do no have previous knowledge of the potential unsafe condition. However, the key to this case is the system of maintenance and inspection, which was upheld as reasonable. Given that this washroom would experience a constant flow of people, it is important to keep in mind that a cleaning schedule with 2-hour intervals was determined to be reasonable. It should also be noted that had the Plaintiff obtained expert evidence that showed that the bathroom floor surface was unreasonably safe while wet, the outcome would likely have been different. Summary With unlimited time and resources, there would be an ability of any retailer to do more to protect the customers and persons coming onto its premises. However, the above discussed decisions

10 9 - confirm the long-standing principle that the standard is not one of perfection, but is rather one of reasonableness. A reasonable system of maintenance and inspection is generally critical to meeting this test. However, the decisions discussed above go further by highlighting that determination of any claim pursuant to the Act will considers the action of both parties in all of the circumstances. Where a plaintiff is the author of his or her own misfortune, he or she may ultimately be unable to recover for any resultant injuries. It is fundamental to appropriately defending claims that retailers are aware of the burden on the plaintiff. The plaintiff must establish that first, a hazard was present and caused the accident, and second, that the hazard was caused due to a breach of the duty of care of the retailer. In situations where the plaintiff is unable to provide evidence that they witnessed the hazard that caused their accident, their claim may be dismissed. In unusual cases, this dismissal may occur even where there has been a break down in retailer's system of maintenance and inspection. In order to properly defend these types of claims, it is important that a retailer's front-line employees understand that the defence will be aided by a prompt investigation to determine whether there is any hazard that could have caused the accident. In litigated claims, there will often be complete disagreement between the plaintiff and the investigating employee(s) as to whether a hazard is present. In general practice, this will lead to a "he said, she said" situation where the sides disagree about whether there was any substance or hazard present. In a "he said, she said" situation, courts will often find that a plaintiff, having suffered a traumatic and unusual incident, will have the better recollection of the events that occurred. Given this consideration, it is important for retailers to be aware that documentary evidence, including photographs and created contemporaneously to the incident, will significantly bolster the retailer's version of events. If that documentation shows that a hazard was present, this will also aid in pushing for a swift resolution, which ultimately benefits our clients in the form of lower defence costs. It is important to note that court s have accepted that in slip and fall type cases, it may be appropriate to determine causation by way of a summary trial application. Van Slee, Charlie and Fulber were heard by summary trial, with finding in favour of the retailer in each case.

11 10 - For more information please visit our website at or contact: Romany Benham-Parker rbenham-parker@wt.ca