Court of Appeal Decision of the Week

‘Slip and Fall’: Speculation; and the Court of Appeal

Case: Robinson v. 1390709 Alberta Ltd., 2017 BCCA 175 (CanLII)

Keywords: ‘Slip and Fall’; Occupiers Liability Act, RSBC 1996, c 337

Synopsis:

On their way to attend a show, Ms. Robinson and Ms. Horgan stop at a restaurant called Chopped Leaf to have dinner. The roads and sidewalks are dry as it had neither snowed nor rained that day. After Ms. Robinson and Ms. Horgan finish their meals, they get up and begin walking towards the front door, leaving their dishes at the table. There are no other customers in the restaurant at the time.

In her affidavit, Ms. Robinson explains what happens next (See at para. 2):

As I neared the door, I put my left foot down and felt it slip forward suddenly. I definitely felt something slimy and thicker than liquid under my foot, and felt it slide as my left foot slid forward. I could not lift my left foot because it was already too far in front when I started to react to the slip. I tried to correct my balance by shifting my weight forward but my left foot was out in front of me and I fell heavily onto my back and left side. [Emphasis added].

Although Ms. Robinson is unable to say what precisely she slipped on, the Appellant is found 100 per cent liable under the Occupiers Liability Act, RSBC 1996, c 337. On appeal, the Appellant submits the Trial Judge erred both in resorting to “speculation” as to the cause of Ms. Robinson’s fall, and in his interpretation of Sinow v. Maple Ridge Square Shopping Centre Ltd. [1990] B.C.J. No. 743.

The Court of Appeal dismisses the appeal; finding the Trial Judge below did not speculate as to the cause of the fall, the Trial Judge did not misinterpret Sinow, and that both his findings of credibility and fact were well supported by the evidence.

Importance:

At para. 1 of the judgment, Newbury J.A. wrote “…Since the case turned almost entirely on the facts found by the (summary) trial judge and is unlikely to be of interest to anyone other than the parties, I do not intend to rehearse the facts in these reasons except to the extent necessary to explain our conclusions”. Notwithstanding Newbury J.A.’s comment, we at Supreme Advocacy LLP are indeed interested. Why? The case reveals an interesting debate about “speculation” as to the causes of an injury and provides some insight into the Court of Appeal’s view of occupier’s liability. For example, where does impermissible “speculation” end and permissible “inference” begin?

The statutory duty of care, as per s. 3 of the Occupiers Liability Act and Mainardi v. Shannon 2005 BCSC 644 (CanLII), does not require an occupier to remove every possibility of danger. The test is reasonableness rather than perfection. (See para. 5). This point is important. Since Ms. Robinson could not precisely describe what she slipped on, from the Appellant’s point of view it is difficult to determine whether Chopped Leaf’s conduct actually fell below the standard of care (no pun intended). As confirmed by the Court of Appeal, the burden always remains on Ms. Robinson to prove the “nexus” between her fall and the occupier’s failure to discharge the duty of care. (See para. 5).

Citing Van Slee v. Canada Safeway Ltd. 2008 BCSC 107 (CanLII), the Appellant argued that, since Ms. Robinson “was unable to say exactly what she had slipped on”, it was insufficient to simply say she had slipped on “something”. (See para. 6). Notwithstanding this argument, the Court of Appeal concurred with the Trial Judge’s application of Sinow, which provides as follows:

It is not a particular type of debris that the occupier must concern himself with, rather it is debris generally which creates a risk of a slip and fall such as happened here that he must concern himself with. The trial judge found as a fact, and this is not challenged by the appellant, that the respondent slipped and fell on a leaf or leaves; or to put it another way she slipped and fell as a result of a form of debris on the floor in the common area that created a risk of harm. (See para. 7).

Newbury J.A. was careful to note the Trial Judge was alive to the fact courts are not entitled to resort to “speculation” in determining the causes of a plaintiff’s injury. According to the Court of Appeal, the Trial Judge’s description of Sinow was an innocuous reference to “…the proof of a foreseeable risk with which an occupier must concern himself.”(See at para. 8). In other words, he did not cite Sinow to suggest it was unnecessary for Ms. Robinson to establish the cause of her injury.

The following points were discussed by the Court of Appeal in support of the Trial Judge’s decision:

  • unlike the situation in Van Slee, the Trial Judge noted Ms. Robinson was able to state the substance she slipped on was “…different than water” and “…had the direct consistency of a food item”;
  • the Trial Judge noted both the colour and texture of the Appellant’s floor made it challenging to see items on the floor. (See para. 7).

On this basis, and Newbury J.A.’s assessment of Sinow, the Court of Appeal was not persuaded the Trial Judge erred by engaging in speculation as to the cause of Ms. Robinson’s slip and fall accident.

Counsel for the Appellant: Jennifer Brun (Harris & Brun Law Corporation, Vancouver)

Counsel for the Respondent: Darren Williams and Matthew Melnyk (League and Williams, Victoria)

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Posted: Wednesday, May 17, 2017