Sep 26, 2014

Torts; Personal injury; Occupiers liability

Agar v. Weber, 2014 BCCA 297 (CanLII)

In order to determine whether premises present an unreasonable risk of harm, the trial judge must consider whether there was a recognizable risk of injury, the gravity of the risk, the ease with which the risk could be avoided, and the burden of eliminating the risk

BACKGROUND: The Respondent, Dr. Lyle Agar, was friends and neighbours with the Appellants, Ulrich and Paula Weber. In March 2008, the Respondent injured his right wrist while using a crab shelling device made by Mr. Weber. Mr. Weber had told the Respondent he could have any crabs that were caught as he reset his crab trap, and he pointed out the cleaning device to the Respondent. There was no further discussion about the device. The following day, the Respondent pulled in the trap and found three crabs. He used the device to clean the crabs, pushing them away from him on the device. As he was cleaning the third crab, the shell gave way and he lost his balance, lurching forward. He was cut across his right wrist. At trial, Mr. Weber testified that when he used the device he pulled the crabs toward himself. Mr. Weber had bevelled the outboard edge of the device to create a narrowed edge against which to brace crabs. The Respondent testified that had he known the outboard edge was sharp, he would not have used the device. The parties disagreed on the sharpness of the edge, and the trial judge inspected it and found as fact that it was sharp due to the bevelling. The trial judge also found that the bevelled edge was concealed, as it could not be plainly seen. Based on these findings, he concluded that the device was an "unusual danger", in the sense that it was a "hidden or unexpected danger that an occupier of land knows or ought to have known about." The judge noted that Mr. Weber had been unambiguous in his contention that the device was not sharp and did not need a sharp edge to clean crabs. The judge concluded that because no sharp edge was necessary, the presence of a concealed sharp edge constituted an "unusual danger". He went on to find that Mr. Weber owed the Respondent a duty of care to warn him about the edge, and because he did not he had breached the standard of care for an occupier under the Occupiers Liability Act (OLA) as well as in negligence at common law. The trial judge dismissed the Appellants' claim that the Respondent was contributorily negligent, and found that but for the Appellants' failure to warn him, the Respondent would not have sustained his injury.

APPELLATE DECISION: The appeal was allowed. The Appellants argued that the trial judge erred in his factual findings and his conclusion that the sharp edge constituted an "unusual danger". They also argued that he erred in law by inferring that the injury was caused by contact with the bevelled edge of the device, in the absence of proven facts from which the inference could properly be drawn, and that he erred in assessing their liability under the common law test of "unusual danger" rather than on the statutory test under s. 3 of the OLA. The test for the duty of care under that section is that the occupier take reasonable care in the circumstances to ensure that a person on the premises will be reasonably safe in using the premises. This includes land and structures. The Court of Appeal cited Ryan v. Victoria (City) for the principle that the plaintiff must establish a duty of care to conform to a certain standard of care for the protection of others against unreasonable risks. The Court went on to state the well-known rule that for negligence to be made out, the defendant must breach that duty by some act or omission, and the breach of duty must be the proximate cause of the plaintiff's injury. Thus, in the Court's view, the standard of care under the OLA and at common law is the same. Whether or not a risk is unreasonable is a question of fact, and in this case that involved the question of whether the bevelled edge of the device was sharp. The Court of Appeal found that the trial judge's determination was not unreasonable, noting that "sharp" is a relative term. The Court also found that it was open to the trial judge to infer that the Respondent's wrist hit the bevelled outboard edge of the device. However, it was clear from the Respondent's evidence that he used the inboard edge of the device to clean the crabs. This edge created a protrusion against which the crabs could be pushed, and it was common ground between the parties that this edge was not sharp. It was the Respondent's loss of balance and outward thrust of his wrist that cause it to strike the outboard edge. The Court considered that the trial judge's reliance on the language of the common law test for occupiers liability, particularly with respect to the "unusual danger", may have limited his analysis of the issue. The Court found that in order to determine whether the device presented an unreasonable risk of harm, the trial judge had to consider whether there was a recognizable risk of injury, the gravity of the risk, the ease with which the risk could be avoided, and the burden of eliminating the risk. On the evidence, the Court found that the trial judge's conclusion that the outboard edge created an objectively unreasonable risk of harm could not be sustained.