McNulty v. Edmonton (City), 2011 ABQB 297

Court of Queen ’ s Bench of Alberta Citation: McNulty v.

Edmonton (City), 2011 ABQB 297 Date: 20110503 Docket: 0103 25396 Registry: Edmonton Between: John McNulty and Her Majesty the Queen in Right of Alberta Plaintiffs - and - The City of Edmonton, Strathearn Community League, Edmonton Federation of Community Leagues, John Doe #1, John Doe #2 and David Lochrie Defendants Corrected judgment: A corrigendum was issued on July 19, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________

Introduction [ 1 ] The Plaintiff John McNulty (“Mr. McNulty”) sues the Defendants pursuant to the Occupiers’ Liability Act or in negligence following his fall off a Deck on the premises of the Strathearn Community League on August 19, 2000, and his injuries suffered as a result of the fall. Facts [ 2 ] The undisputed facts of the matter are as follows: [ 3 ] The City of Edmonton (“City”) is the registered owner of the land and a permanent building that is used by the Strathearn Community League (“SCL”) as its main premises.

Under a license agreement signed by the City, the SCL and the Edmonton Federation of Community Leagues (“EFCL”), the SCL has the non-exclusive use of the permanent building, which is designated as a community hall (“the Hall”). The SCL is responsible for the development and maintenance of the Hall and attached community facilities located on the site, although its development plans are subject to approval by the City. [ 4 ] In the mid-1990s, SCL decided that renovations were needed to the Hall, in part because floor boards were rotting.

It embarked on renovations in 1995, which included various upgrades, closing off a back entrance, and enlarging the west entrance on the west side by replacing a single door with double doors. The west entrance thus became the main entrance to the building. [ 5 ] The following year, in 1996, the SCL added a Deck off its main entrance on the west side. Although the SCL sought and obtained two quotes for the Deck work from its general contractor who did the other renovations, it elected to have the Deck built by David Lochrie (“Mr.

Lochrie”), an SCL member and a volunteer, at a substantially reduced cost from the prices it had been quoted. Mr. Lochrie was reimbursed for the cost of materials. He built the Deck as essentially a large, wooden platform running about three-quarters the length of the west side of the Hall building, where the main entrance was located. The main entrance doors were raised off the ground, and the Deck provided a platform to stand on for people entering and exiting the Hall, and steps off certain sides of the Deck as a transition to the ground.

The Deck was approximately 16 inches off the ground. [ 6 ] The SCL made the Hall available for rental, including in the summer of 2000. One of the renters that summer was a family who wanted to use the Hall for a birthday party for their young child on August 19, 2000. Among the invited guests to the birthday party was Mr. McNulty, a longtime resident of Strathearn community. Mr. McNulty lived near the Hall with his daughter, Pamela, and his preschool grandson, Julian, who were also in attendance at the party. Mr.

McNulty was about 58 or 59 at that time. [ 7 ] The party took place both inside the Hall and outside on the surrounding grounds. Although the party had started early in the afternoon, Mr. McNulty, who had worked earlier in the day, did not arrive until close to the end of the party, sometime after 4 p.m. At about 5 p.m., when Mr. McNulty was preparing to leave, he exited the Hall building through the double doors and turned right on the Deck, intending to walk off the north side of the Deck. Just as he reached the edge of the north side, Julian called to him from where he was swinging on the swings. Mr.

McNulty turned his head about 45 degrees to look toward his grandson, stepped off the north edge of the Deck, and fell (the “Accident”). [ 8 ] It was common ground that there was no intervening step between the top of the Deck and the ground on the north side of the Deck at the time of the Accident. However, there were intervening steps leading off the west and south side of the Decks. [ 9 ] Mr. McNulty testified that he lost consciousness momentarily. Initially, his family members thought he had suffered a heart attack or stroke.

He was taken to the hospital, where it was discovered that he had torn three of the four quadriceps muscles above the knee. Mr. McNulty underwent surgery and was placed in a cast from thigh to toe.

[ 10 ] Sometime within about two or three months after the Accident, Mr. Lochrie built an intervening step off the north side of the Deck. [ 11 ] Following the Accident, Mr. McNulty did not return to his job as a welder at B.W. Rig Repair & Supply. He did not resume work until 2005, when he began working for Sentrimax as a part-time welder. The position became full time in 2006. [ 12 ] Mr. McNulty had been an avid soccer participant before the Accident.

A former professional soccer player, he had continued to play competitively until age 52, and coached the Victoria and Croatia soccer teams up until the time of the Accident. Following the Accident, he gave up those activities and never resumed participation at that level. Issues [ 13 ] The issues in this case are: A. Are any of the defendants liable as Occupiers under the Occupiers’ Liability Act , R.S.A. 1980, c. 0-3 (“ OLA ”)? 1. Who is an Occupier of the Hall and its Deck? 2. Did the Occupier(

s) meet its duty of care to take reasonable care to keep Mr. McNulty reasonably safe on the Deck? B. Alternatively, are any of the defendants liable in negligence under the common law? C. Is Mr. McNulty contributorily negligent by failing to keep a proper lookout when he stepped off the north side of the Deck? D. If Mr. McNulty is contributorily negligent, how are damages to be apportioned? E. What is the quantum of damage? Analysis A. Are Any of the Defendants Liable as Occupiers under the Occupiers’ Liability Act ? 1. Who is an Occupier of the Hall and its Deck? [ 14 ] The term "occupier" is defined in the Act. It states, at s. 1:– (c) "occupier" means (

i) a person who is in physical possession of premises, or

(ii) a person who has responsibility for, and control over, the condition of premises, the activities conducted on those premises and thepersons allowed to enter those premises, and for the purposes of this Act, there may be more than one occupier of the same premises; [15] In order to be in "physical possession" of the premises, one must have "actual, physical presence on the property, as opposedto mere ownership of the property": Goldmanis v. Mador, (BC SC), [1991] B.C.J. No. 3049 (QL), cited in Kiceluk v.Oliverio, 2001 ABQB 704, 97 Alta. L.R. (3d) 91 at para. 21.

None of the Defendants were in physical possession of the premises, asthere is no evidence to suggest that any of them were on the premises at the time of the Accident. [16] The question then, is whether any of the Defendants were Occupiers within the meaning of s. 1(c)(ii) by having the requisitecontrol and responsibility over the premises. [17] The test of an "Occupier" under s. 1(c)(ii) requires that a person have responsibility and control over three elements, as statedby the Court of Appeal in Pauk v. Catholic Parish of Saint Nykolaja of Greek Ruthenian Rite to Rome, 2008 ABCA 16, 83 Alta.

L.R.(4th) 1 at para. 3. These three elements are: 1) the condition of the premises, 2) the activities conducted on the premises, and 3) thepersons allowed to enter the premises. All three must be satisfied. (

a) Was the SCL an Occupier of the Hall? [18] It is common ground that the SCL did have the requisite control and responsibility over the premises, and therefore was anOccupier of the Hall and its Deck. However, s. 1(

c) makes it possible to have more than one Occupier. Therefore, I must considerwhether the City and Mr. Lochrie were also Occupiers of the Hall. (

b) Was the City an "Occupier" of the Hall? [19] The Plaintiff argues that the City was an Occupier of the Hall because it had the power to approve or deny any proposal bythe SCL to improve or develop the site or facility. Under the terms of a license agreement dated March 3, 2000, between the City, theSCL and the EFCL (the “License Agreement”), the SCL was to submit any development or re-development plans to the City forapproval. The City also had the right to inspect the facilities to ensure compliance with applicable legislation, and to make repairs uponnotice to the SCL if the SCL did not pass inspection.

In addition, the Plaintiff notes that the City representative who attended boardmeetings had made the suggestion that the Deck be a temporary one until a drainage issue could be dealt with. Therefore, the Plaintiffsays, the City had control and responsibility over the condition of the premises. [20] The Plaintiff also noted that the License Agreement provided that the City and the SCL were to meet to discuss the activitiesthat could be conducted on site.

Under Clause 9 of the License Agreement, the City was permitted to hold its own activities on the siteafter giving reasonable notice to the SCL, and as long as the activities did not conflict with the SCL's own programs and activities. ThePlaintiff also submitted the fact that City staff were present for a Green Shack program in place during the summer, and these staff wouldhave a key to access the Hall. [21] The Plaintiff also pointed out the evidence of Mary Blair, who served as treasurer of the SCL during the time the Hall wasrenovated and the Deck was added in 1995-96 and remained as treasurer until 2001. Ms.

Blair said she was of the view that the City wasresponsible for the configuration of the Deck and whether a step was needed for the north side. She said she based her assumption on thefact that the City had to approve any renovations, and the fact that the City had a representative at the board meetings. She said if therewere any problems, she would have expected the City to flag it. [22] Therefore, the Plaintiff says, the City had control and responsibility over the activities conducted on the premises, and thepersons allowed to enter the premises, satisfying the test under s. 1(c)(ii) for being an Occupier.

[ 23 ] The Defendants' position is that the City was not an Occupier. They say that the License Agreement puts the responsibility for renovations or maintenance, including day to day upkeep, of the facilities on the SCL, at its own expense. [ 24 ] The Defendants also note that while the City had a representative attend board meetings, this person was not a member of the board and had no say with respect to the activities that occurred at the Hall or grounds, or who could enter the Hall or grounds. The representative did not have a key to the Hall.

The City could not exclude any visitors or veto any activities decided upon by the SCL, including whether it could be rented and to whom. [ 25 ] With regards to the Green Shack program, the Defendants note that the program was run only at the request of the SCL, and the SCL paid the City to run it. [ 26 ] I agree with the Defendants that the City does not meet the test of an Occupier.

Although the License Agreement shows that the City did have some influence over the condition and use of the Hall, this is not sufficient to give it the requisite control and responsibility over the Hall. [ 27 ] In my mind, the City’s relationship with the SCL was similar to a landlord-tenant relationship, where the landlord retains some control in order to protect its property, but not enough to make the landlord an Occupier. As stated in Kiceluk v.

Oliverio , a landlord is generally not considered an “Occupier” unless the landlord has“minute-to-minute, hour-to-hour control” over the premises, including the power to admit or exclude persons from the premises: paras. 21-23. The City’s right under the License Agreement to ensure that its property was used in an acceptable manner and to take steps if it determined that the property was not so used is not sufficient control within the meaning of the OLA . [ 28 ] I also cannot accept Ms.

Blair’s opinion that the City was responsible for the design and construction of the Deck solely because a City officer attended board meetings. There is no evidence to suggest that the City officer who attended SCL board meetings had any power to direct the board’s decisions. There is nothing to show that the City officer’s comment regarding the Deck was anything more than a suggestion. There is no evidence to show that the City officer had any knowledge or expertise regarding the Deck design nor that the officer was consulted.

The SCL struck a renovation committee and there is no evidence that the City officer had input on that committee. The fact that the SCL had to submit renovation plans for approval to the owner of the site does not in my mind give the City control and responsibility for the design and construction of the Deck. I would also note that the Deck design submitted to the City was not ultimately the design that the SCL proceeded to build. This does not support the view that the City had control or responsibility over the Hall. [ 29 ] For those reasons, I find that the City was not an Occupier of the premises. (

c) Was Mr. Lochrie an Occupier of the Hall? [ 30 ] It was not seriously argued that Mr. Lochrie was an Occupier of the Hall. Mr. Lochrie was a member of the SCL board, and was in charge of maintenance and repair of the Hall and surrounding facilities. He also built the Deck. [ 31 ] However, Mr. Lochrie’s power over board decisions appeared limited. Even if he had a vote on the board, it was not enough to give him control. He testified that he had not wanted to rent out the Hall in the summer of 2000 because of issues over who would unlock and lock up the Hall after a rental, yet the Hall was rented out.

He built the Deck, but only at the direction of the SCL, specifically the president of the SCL at the time, James Barlow. And there is no evidence to suggest that he had any control over who the users of the Hall were, or what activities were conducted at the Hall. [ 32 ] As a result, I find that Mr. Lochrie does not meet the conjunctive test of being an Occupier. Since I have also found that the City was also not an Occupier, the only Occupier of the Hall was the SCL.

2. Did the Occupier(

s) meet its duty of care to take reasonable care to keep Mr. McNulty reasonably safe on the Deck? [ 33 ] The OLA , s. 5, sets out the duty owed by Occupiers to visitors.

It states: 5 An Occupier of premises owes a duty to every visitor on the Occupier’s premises to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the Occupier to be there or is permitted by law to be there. [ 34 ] The Plaintiff argues that the SCL did not meet its duty to take reasonable care to keep him reasonably safe on several bases. [ 35 ] Firstly, Mr.

McNulty alleges that prior to the day of the Accident, there had been a step leading off the north side of the Deck. This step was removed without warning. Mr. McNulty, who testified he had used the Deck many times in the past, was anticipating a step when he stepped off the north side of the Deck. The removal of the step constituted a hazard. [ 36 ] Secondly, Mr. McNulty alleges that the SCL failed to build its Deck according to the applicable building code of the time, the Alberta Building Code 1990 (the “ Code ”).

Specifically, he alleges that the SCL was required to have a handrail and 3 steps connecting the Deck to the ground. [ 37 ] Thirdly, Mr. McNulty alleges that even if the Deck never had a step off the north side, and the Deck was in compliance with building code, the Occupier SCL still failed to keep him reasonably safe in its design and construction of the Deck and its failure to warn him of the hazard presented by the Deck. [ 38 ] The Defendant denies Mr.

McNulty’s allegations. [ 39 ] On the first basis, the SCL says that there was never a step leading off the north side of the Deck, and therefore the SCL did not create a hazard by removing this step without warning. [ 40 ] On the second basis, the SCL says in fact the Deck was in compliance with the Code . It says the Code did not require a handrail to be built, nor did it require that there were steps leading off the north side. [ 41 ] On the third basis, the SCL says that it did keep its premises reasonably safe for Mr. McNulty, and that the Accident was the result of Mr.

McNulty’s failure to exercise ordinary diligence in keeping a proper lookout as to where he was stepping. (

a) Was there a step on the north side of the Deck before the Accident? [ 42 ] Much of the evidence at trial dealt with whether there had been a step leading off the north side of the Deck prior to the Accident. [ 43 ] It is common ground that there were steps leading off the west and south sides of the Deck prior to the Accident. [ 44 ] Mr. McNulty testified that he was a frequent user of the Hall and the surrounding grounds, and that there had always been an intervening step on the north side of the Deck. He testified that he frequently used such an intervening north step prior to the day of the Accident.

[ 45 ] Mr. McNulty’s former spouse, Patricia McNulty, also testified that there had been a step off the north side of the Deck prior to the Accident. Ms. McNulty lived near the Hall and could see the Hall from her apartment. She testified she would often walk through the park to catch the bus. Based on her frequent trips to the park, she said she was certain that there had been a step on both the north and west sides of the Deck. On cross-examination, Ms.

McNulty said she recalled using the north side step on one specific occasion about a year before the Accident, when she had gone to a yard sale being held in the hockey rink. She said she had been carrying something and had gone from the parking lot to the north side of the Deck, used a step leading on to the north side of the Deck, and then stepped down the south side of the Deck to head into the hockey rink. [ 46 ] Mr. McNulty’s daughter, Pamela Bradley, testified that she and her son, Julian, lived with Mr. McNulty in nearby Strathearn Apartments at the time of the Accident.

She said she had lived there for about two to three years before the Accident and still lived nearby, although in different accommodations. She said she and her father were frequent or even daily users of the park because it was a good place to take Julian. Ms. Bradley also testified that there had been a step on the north side of the Deck the prior to the Accident, and that she often sat on the step. [ 47 ] Ms. Bradley said that she had gone to take photos of the Deck either on Sunday, August 20, 2000, the day after the incident, or Monday, two days after the incident.

She said that while she was there, she met a man whom she identified at trial as David Lochrie, who was in charge of maintenance and repairs for the SCL. She testified that he had been taking wood from under the Deck that day, and that he said he knew of her father’s Accident and told her that a step had been removed because there were wasps under the Deck. She testified that he said he was going to build a secure step to replace a step that had been removed because of wasps. [ 48 ] Mrs.

Bradley testified that among the pieces of wood being pulled out from under the Deck was a step that looked like two pieces of wood connected together. She also testified that at one point, she was on her hands and knees looking under the Deck and saw the step under the Deck. She said that the man she identified as Mr. Lochrie was initially friendly and helpful until she began taking photographs of the Deck and the wood. [ 49 ] Ms.

Bradley said she left the site after taking photographs and returned about six hours later, when she observed a completed step constructed on the north side of the Deck that was secured with a black “L” bracket. She said she observed it from the street and did not come closer to inspect. [ 50 ] Some of Ms. Bradley’s photos were entered into evidence as an exhibit. However, none of these photos show the pieces of wood pulled out from under the Deck that Ms. Bradley thought was a step. Ms.

Bradley, who was 21 at the time and a student, said she was not an experienced camera user, and did not realize until later that she did not have a photo of the step she saw under the Deck. She also said that her intention was to show that the step had been removed, rather than to show that there had once been a step there, since she did not expect that would be an issue at trial. Ms. Bradley maintained that she took many more photos than were produced or entered as exhibits, but it is unclear what happened to these photos. Ms.

Bradley maintains that she handed all of her photos over to her father’s lawyer. [ 51 ] There were some discrepancies in Ms. Bradley’s testimony. For example, at one point she said that she was able to observe what she thought was the north side step and had tried to get a picture of it before “the maintenance pulled it out.” However, she later testified that she did not see the step ever removed from under the Deck. She also testified that the man she identified as Mr. Lochrie had pulled out “tons” of wood from under the Deck and strewn it around.

However, the only pile of wood appearing in the photographs were rink boards from the skating rink, which Ms. Bradley denied was the wood she had seen Mr. Lochrie pull out. [ 52 ] Mark Hughes of Sintra Engineering, who was qualified as an engineering expert for the Plaintiff, testified that the Deck did not show signs that any step had been attached to the north side of the Deck prior to the Accident. However, Ms. Bradley testified that she believed the step that had been on the north side to be a moveable step. [ 53 ] John Stewart Jamieson, an old friend of Mr.

McNulty, also testified that he remembered there being a step on the north side of the Deck prior to the Accident. Mr. Jamieson testified that he had lived in Strathearn for about 40 years, and had been friends with Mr. McNulty for about 30 years. He said that he was a frequent user of the park, taking his children and then his grandchildren and dog there over the years to use the play park, skating rink and wading pool. He testified that he had used the Deck on occasion when he crossed it to get into the skating arena.

According to him, there was an intervening step around all three sides of the Deck – the south, west and north sides – before the Accident.

[ 54 ] In Court, Mr. Jamieson produced three photographs of the Deck which had not previously been produced. These photographs depicted a step at the north end of the Deck that looked more worn than the step depicted in photos taken by Sintra Engineering on November 21, 2001, a little over one year after the accident occurred. The Sintra photos showed the step that was built on the north side in the fall of 2000, after the Accident. [ 55 ] At trial, Mr. Jamieson could not remember exactly when the photographs were taken.

At one point he said it was within three months of the Accident, but then later said it could have been about a year later. The Defendants led evidence to suggest that the photos were in fact taken much later. For example, Mr. Jamieson’s photos also showed a different step on the west side than the one in the Sintra photos. Evidence at trial demonstrated that the west side step was replaced in September 2003. Mr. Jamieson’s photos also show a “No Trespassing” sign.

Uncontradicted evidence shows that such a sign was put in the window of the Hall around May 2004. [ 56 ] The witnesses for the Defendants flatly contradict the testimony of the Plaintiff’s witnesses and say that there had never been a north step prior to the Accident. [ 57 ] Daniel Blais, the president of the SCL at the time of the Accident, gave evidence that there was no step on the north side of the Deck prior to Mr. McNulty’s Accident.

James Barlow, the president of the SCL during the period of renovations, also testified that there was no step off the north side when the Deck was built. [ 58 ] Mary Blair was the treasurer of the SCL from the time the renovations were done to the Hall in the mid-1990s until about 2001, the year after the Accident. She testified that there had never been a step off the north side of the Deck. Ms. Blair said users could either step directly from the pavement to the top of the Deck, which she referred to as a “big” step, or they could use the intervening step on the west side of the Deck facing the grass. Ms.

Blair said she herself was in the practice of using both the west side steps or taking the “big” step from pavement to Deck on the north side. [ 59 ] David Saunders was the Officer of the City who acted as liaison with the SCL at the time of the Accident. Mr. Saunders testified that when he went to the Hall, he typically parked in the east parking lot, then used the walkway along the north side of the Hall to come around to the main entrance on the west side. This would bring him to the north side of the Deck, and he typically would step onto the Deck from the north side. Mr.

Saunders testified that there had never been an intervening step between the pavement and the Deck on the north side. [ 60 ] David Lochrie built the Deck in 1996. He testified that he built a step on the west side of the Deck leading onto the grass, but not on the north side leading onto the pavement. He did not provide an explanation for why he did not build a north side step, but he did say one reason he built a step on the west side was because there was a depression in the grass on the west side which increased the height of the top of the Deck from the ground. [ 61 ] Mr.

Lochrie flatly denies having the conversation with Ms. Bradley that Ms. Bradley describes. According to Mr. Lochrie, he has never met Ms. Bradley prior to seeing her in the courtroom. His sole contact with her was when she called him after the Accident and asked if he could help out with rent and groceries and other financial matters. He said he asked who he was talking to, and she then hung up on him. [ 62 ] Mr. Lochrie testified that there had been problems of vandalism with the facility. He testified that on two different occasions prior to the Accident, a step had been stolen from the Deck.

One step was the step from the west side of the Deck, and the other was from the south side of the Deck. On another occasion, he noticed that a 1x6 board he had put across the north side of the Deck to close the opening to the underside of the Deck had gone missing. He said he eventually found it under the Deck, but could not remember whether the incident of the missing board occurred before or after the Accident. [ 63 ] Mr. Lochrie said that he had been informed by Daniel Blais, the president of the SCL at the time of the Accident, that there was a problem with wasps under the steps.

He agreed that the only access to the area underneath the Deck was through the north side of the Deck. He could not remember exactly when the wasp problem arose. [ 64 ] Mr. Lochrie also testified that he did build a step on the north side of the Deck following the Accident, however this was not

until about 6 to 8 weeks after the Accident, or sometime in October 2000. This differs from Ms. Bradley’s statement that Mr. Lochrie built a step off the north side the day after the Accident. Mr. Lochrie said the SCL did not make a decision on the step until after an SCL board meeting. He was told to build the step by Mr. Blais following the meeting. The SCL’s account statements, which show cheques made out to Mr. Lochrie on October 6, 2000 and October 21, 2000, for Deck repairs and supplies, tend to support this timeline. Mr.

Lochrie said the step he built was attached to the Deck with steel brackets to ensure it was secure. [ 65 ] Based on the evidence, I cannot find on a balance of probabilities that there was a step attached to the north side of the Deck prior to the Accident. The evidence of the Plaintiff’s and Defendants’ witnesses are flatly contradictory.

One possible explanation is that given the passage of time of about a decade and the many changes to the Deck over the years – with steps being built, stolen, removed and re-built at various points over the years – some witnesses have become confused as to the timeline. [ 66 ] The physical evidence of the Deck indicates that there was no step attached to the north side prior to the Accident, although that does not rule out a moveable or freestanding step. However, I cannot find based on the evidence that there was a moveable step prior to the Accident.

The only evidence to support such a step is the assertion of Ms. Bradley, who based it on what she believes she saw one afternoon over a decade ago. This has been contradicted by Mr. Saunders, Ms. Blair, Mr. Lochrie and Mr. Blais. It also makes little sense to me why Mr. Lochrie would have built such a freestanding step when he built permanently attached steps on the west and south sides of the Deck. Mr. Lochrie testified that he used a 1x6 painted board to cover the opening on the north side of the Deck prior to the Accident. The Plaintiff’s expert, Mr.

Hughes, said this was consistent with his examination of the Deck. (

b) Did the Deck breach the Code ? [ 67 ] The parties disagreed as to whether the Deck was in violation of the applicable building code, which the Defence conceded was the 1990 Code . [ 68 ] According to the Plaintiff, the Deck required a building permit, which was never obtained. The Plaintiff said that even if the Deck had cost less than the $5,000 threshold for requirement of a building permit, it constituted a “health and safety” issue and therefore required a permit.

The Plaintiff also argued that the Deck was also in violation of the Code because it constituted a “means of egress” which needed at least one handrail and steps conforming to certain dimensions. [ 69 ] The Defendant argued that no building permit was required for the Deck because the cost of the Deck did not exceed the $5,000.00 threshold after which a building permit was required. The Defendant said that the fact that the Deck was less than 24" off the ground meant that guardrails and handrails were not required.

The Defendant also argued that the north side of the Deck was not the means of egress as people were expected to use the steps on the west side of the Deck. Finally, the Defendant argued that even if there were Code violations, they did not cause or contribute to Mr. McNulty’s Accident, which was solely caused by his failure to keep a proper lookout. [ 70 ] It was common ground that the SCL did not obtain a building permit for the Deck. When the SCL embarked on a renovation plan in 1994-95, it initially submitted to the City a Hall renovation proposal that included a new Deck with a wheelchair ramp.

It is unclear whether the plans were submitted as a result of its obligation under the License Agreement or for some other reason, but it was not for the reason of obtaining a permit. The City approved the SCL renovations, conditional – among other things – on it obtaining required permits and paying the cost of renovations. The SCL obtained at least two quotes for work from Tradewind Renovations Ltd. The first quote in 1995 for a total of $41,419.70 included the cost of a Deck for $2,210. It also included new floorboards, electrical, plumbing, insulation, bathrooms, exterior doors, and finishings.

The SCL obtained a building permit for the interior renovations and went ahead with them in 1995, but did not build a Deck. A second quote was obtained in 1996, this one dealing with “exterior renovations.” A new Deck with “a roof over it” was listed at $3,800. [ 71 ] The SCL requested approval from the City of its plan for a Deck in a letter dated August 23, 1996, sent by Mr. Barlow to Diane Dunn, the community recreation coordinator for the City. The letter stated:– 1. A Deck is needed as there are no steps or platform at the main entrance to our comm. hall. 2. Previous steps & Deck rotted out last year.

3. Proposed Deck will be 20' wide and 12' deep to allow wheelchair access as well as rink access without climbing stairs with skates on. 4. Spring runoff collection of water in the Deck area has been addressed and will not pose a problem. 5. Cost will be $1,700.00 6. Immediate approval is needed to maintain operations of League’s ongoing activities. ... The second page of the letter showed a rough drawing of the Hall with the proposed Deck. At the bottom of the drawing was an asterisk beside the phrase, “Deck MUST BE COMPLETED BY OCT 15 1996.” [ 72 ] Ms. Dunn responded to Mr.

Barlow in a fax dated August 28, 1996, stating that the City could not approve the project as yet because it had concerns about the drainage issue. [ 73 ] It is unclear exactly what further conversations or communications took place between Ms. Dunn and Mr. Barlow, or anyone else from the City and the SCL. However, the SCL proceeded to build the Deck in 1996, without receiving approval from the City. [ 74 ] The SCL did not have the Deck built by Tradewind. According to Mr. Barlow, this was because the proprietor of Tradewind moved, and also because he was not experienced at building Decks. Mr.

Barlow denied that Tradewind was not used in order to save money. [ 75 ] For whatever reason, Mr. Lochrie was given the task of building the Deck. He was paid $400.00 plus the cost of materials. Mr. Barlow said he understood Mr. Lochrie to be experienced at building Decks because he had built his own Deck. Mr. Barlow said he told Mr. Lochrie to build a Deck according to legal specifications, and that his intention was that Mr. Lochrie would do so. [ 76 ] Mr.

Lochrie, who was an Atco operator at the time, testified that he had built a few Decks in the past, but did not consider himself to be an experienced Deck builder. He said he did not have time to go to the Planning & Development office of the City to obtain a permit, so he called the City to ask if he needed a permit. Mr. Lochrie testified that he told the City employee on the phone the dimensions and height of the Deck and that the Deck would be a freestanding, moveable Deck – that is, that it was not attached to the Hall building.

In actual fact, the Deck was bolted to the Hall building using lag bolts and has never been detached from the Hall. [ 77 ] Mr. Lochrie testified that the City officer said that he would not need a permit for the Deck if it was less than 16" off the ground. At trial, he testified that he believed the Deck was about 14" off the ground. In actuality, it was about 16" off the ground, and the Plaintiff’s expert, Mr. Hughes, measured it as high as 16.1" off the ground at one point. [ 78 ] Mr. Lochrie admitted that he was not aware that Alberta had a building code in 1995.

He testified that he had not been informed by Mr. Barlow or anyone else that the City had an issue with the drainage from the site. He testified that nobody mentioned building codes to him. [ 79 ] It appears that the City never approved the building of the Deck. Rather, it was presented as a fait accompli after it had been

built. It appears the City took no further steps regarding the Deck. [ 80 ] The Plaintiff’s expert, Mark Hughes of Sintra Engineering, was of the opinion that the Deck required a permit because it was really part of the more extensive renovations performed in 1995 that had been quoted at $41,419.70. He also testified that the design of an exit ramp or stair constituted a health and safety issue, and therefore required a permit. [ 81 ] Mr. Hughes also testified that the Deck did not comply with the Code .

According to him, the north side of the Deck constituted a “means of egress” since that was the side leading onto the concrete walkway that led to the parking lot behind the building. The west side steps, which was referred to as the “front steps” by Mr. Barlow, Mr. Blais and Ms. Blair, led onto grass and some trees, and the south side steps led to the skating rink and a utility building, and was not usually used as a walkway to the Hall. Mr. Hughes said if the north side of the Deck was a “means of egress,” then it required a handrail that people could grab onto in case they tripped or slipped on the stairs.

The riser on the step was also required to be less than 200 mm, or 7.9", when in fact the step up onto the Deck from the north side, without a step, was about 16". [ 82 ] The Defendants presented Maurice Otto as their building code expert. At the time of trial, Mr. Otto was the director of building permits with the City, and also worked as a building inspector for the city from 1992. The Plaintiff argued that Mr. Otto’s evidence should not be given much weight as he was in a conflict of interest. [ 83 ] Mr.

Otto testified that the practice of the City at the time of the Hall renovations was to not require a permit for any project worth less than $5,000. He stated that this information would be imparted over the phone without the city officer investigating into whether there were possible health or safety issues. He said that the practice of the City was to not require a permit for any Deck less than 24" off the ground. [ 84 ] Mr. Otto disagreed with the Plaintiff’s contention that the City had the duty to consider health and safety issues for a Deck worth less than $5,000.

He said City inspectors could deem something a health and safety issue only if it was not in compliance with the Code . He stated that any project under $5,000 would be deemed not to represent a health or safety issue in the context of issuing a permit. [ 85 ] Mr. Otto stated that the fact a Deck is floating or fixed does not directly affect whether a permit is required. He stated it would only come into play if a floating Deck floated to the extent that it was higher off the ground than 24", for example, if it was placed on something that would lift it off the ground. [ 86 ] Mr.

Otto said the City considered it acceptable for someone doing renovations to break a larger renovation into smaller pieces to get under the $5,000.00 threshold in order to avoid the need for a permit. [ 87 ] In terms of whether the Deck was in compliance with the Code , Mr. Otto was of the opinion that it did not breach the Code . He said that the Code requirements for a means of egress related only to “stairs.” He defined a “stair” as at least 3 steps. In his opinion, the Deck was not high enough to require 3 steps. He defined a “step” as one rise and run, not including the top part of the Deck.

By that definition, the west side of the Deck had only one step. [ 88 ] Mr. Otto also explained that existing structures were essentially grandfathered in under the Code . In this case, he explained that the fact that there had been steps under the main door before the Deck was built meant that the steps could have been replicated without being in full compliance with the Code .

He stated that it was acceptable to continue non-compliance as long as the replacement steps – that is, those off the west side of the Deck – were not less safe or less in compliance with Code . [ 89 ] On this note, the Plaintiff argued that there had previously been 2 steps (not including the top platform) under the door, and now there was only 1 step off the west side of the Deck, and therefore the Deck steps should not be considered a replacement for the old steps. [ 90 ] Mr.

Otto agreed that the north side of the Deck presented a “large, awkward step” and was not an acceptable means of egress under the Code because it was too high. He stated that a step should not be any higher than 8". However, he stated City inspectors did not concern themselves with whether a step should have been built along a certain side so long as there were steps off any side. He

testified that an inspector would have ignored the north side since it had no steps, and only inspect the west and south sides to see if theirsteps were acceptable. He said Code was silent as to the placement of the step and inspectors would not consider this issue. In hisopinion, the Hall Deck as it existed at the time of the Accident would not have breached the Code. [91] Although I have some doubt in my mind regarding Mr. Otto’s

interpretation of the Code, the onus is on the Plaintiff toestablish that the SCL was in breach of the Code. I find myself unable to conclude on a balance of probabilities from the evidence beforeme that the SCL breached the Code. However, I must also add that this is in large part because under Mr. Otto’s approach, the Codeappears to be applied in such a narrow and restricted fashion that it seems to have little bearing on the issue of whether the north side ofthe Deck represented a safety hazard. [92] As Mr.

Otto noted, a Safety Codes officer would not have been concerned with the north side of the Deck because it had nosteps, notwithstanding the fact that, as he said, it was a large awkward step that would not have been an acceptable step under the Code.Perhaps most telling of all, Mr. Otto also stated that compliance with the Code does not mean something is safe, it only means that theowner/builder has met the minimum requirement of the Code. [93] In this case, there is competing evidence regarding this Deck’s compliance with the Code.

However, cases have suggestedthat compliance or non-compliance with the Code does not dispose of the question of whether a structure is “reasonably safe” under s. 5of the OLA: Vanaalst v. 510 Fifth Street Properties Inc., 2006 ABQB 154, 396 A.R. 334 at para. 29. Instead, it is only one factor thatshould be considered, and the weight ascribed to such evidence must be dictated by the circumstances.

For example, in Vanaalst, Park J.found the defendant was negligent, but noted, at para. 29, “That finding of negligence exists independently of any alleged breaches of the1997 Alberta Building Code.” [94] Building code compliance was also not determinative in St. Amant v. Penetanguishene (1996), 32 M.P.L.R. (2d) 190 (Ont.High Ct. J.), where the defendant was found liable after the plaintiff fell descending the stairs leading to the floor of the defendant’shockey arena.

The Court found that the absence of a handrail, which would have prevented the fall, did not by itself attract liability sinceit was not required under the building code applicable at the time the stairs were built. However, the combination of the lack of handrailand the fact that the defendant allowed spectators to encroach on the steps and crowd users of the stairs created a hazard for which thedefendant was liable. [95] I would also make note of the case of Baker et al. v. The Regional Municipality of York (2006), (ONSC), 84 O.R. (3d) 279 (Ont. Sup. Ct.

J.), an occupiers’ liability case involving a plaintiff who was injured when she fell as she steppedout of a witness box in a courtroom. The Court found that while the Ontario building code did not apply to the witness box and thereforethe defendant had not breached the building code, the defendant was still liable for not keeping its premises reasonably safe. [96] I would apply the same reasoning here. Mr.

Otto’s evidence that the Code does not require the north side of the Deck to beconsidered a means of egress impresses upon me that the Code is of little relevance to the question of whether the SCL took such care asin all the circumstances was reasonable to keep Mr. McNulty reasonably safe. According to Mr. Otto, the Code is applied in such alimited fashion that one could say it does not fully address the question, as in St. Amant, or that it is scarcely applicable, as in Baker. (

c) Did the SCL discharge its duty to take reasonable care to make the premises reasonably safe for Mr. McNulty? [97] As explained in Wood v. Ward, 2009 ABCA 325, 12 Alta. L.R. (5th) 52 at para. 6, s. 5 of the OLA modifies the common lawduty of care to warn or protect visitors from “unusual dangers” only, and imposes a duty on occupiers to prevent injury to visitors fromreasonably foreseeable risks. An Occupier can discharge this duty by taking reasonable care to prevent reasonably foreseeable risks. [98] In the earlier case of Lorenz v. Ed-Mon Developments Ltd.(1991), 1991 ABCA 82 , 79 Alta.

L.R. (2d) 193 at para. 3, the Alberta Court of Appeal described the test to be applied as follows:– The correct question, then in deciding whether or not an occupier has been negligent is to ask whether it could foresee a risk to visitorswho exercise ordinary diligence. If the answer is yes, the occupier is negligent even if the plaintiff failed to exercise ordinary diligence....

[ 99 ] The Court of Appeal Wood v. Ward , considering the test as stated in Lorenz , clarified that negligence on the part of the visitor does not foreclose liability on the part of the Occupier. The question of whether a visitor was also negligent is a question of contributory negligence. As the Court stated at para. 7:– It follows that the duty of the occupier is not only to protect the reasonably diligent visitor, but also to be aware that some visitors might themselves be careless, that is, contributorily negligent.

The occupier’s duty ends only when either the risk on the premises or the conduct of the visitor becomes reasonably unforeseeable. [ 100 ] It appears to me that the correct question to ask in determining liability of an Occupier is whether the Occupier took reasonable care to avoid reasonably foreseeable risks to a visitor who is exercising ordinary diligence.

The question of whether the visitor took reasonable care, or was reasonably diligent in avoiding risk of injury, is a question to ask at the stage of determining whether the visitor was contributorily negligent – that is, also negligent. [ 101 ] At this stage of determining liability, the questions I must ask myself are: Was it reasonably foreseeable that an ordinarily diligent visitor would use the north side of the Deck as a step and fall or stumble doing so, thereby injuring himself or herself?

If so, did the SCL take reasonable care to prevent this risk? [ 102 ] There were three sides to the Deck, the south, west and north sides. The south side led to the skating rink, and, by turning to one’s left off the Deck, to a narrow passageway where a utility building was located. The west side led onto the grassy parkland area, where there were trees and a children’s playground. The north side of the Deck led onto a concrete pad connected to a sidewalk that led to the parking lot of the Hall. There were intervening steps off the west and south sides of the Deck.

There was no intervening step off the north side of the Deck, nor was there a railing, signage or any other marker to prevent or alert anyone that there was no intervening step off the north side of the Deck. There was a drop of about 16" from the top of the Deck to the ground on the north side. [ 103 ] I find as a matter of fact that the SCL executive was aware or should have been aware that the north side of the Deck could be used as a means of entry or exit to the Hall or the skating rink. Ms. Blair testified that “it was a choice” whether to use the west steps or the “big step” on the north side. Mr.

Blais admitted that the grassy area west of the Deck would be covered with snow in the winter, and that the City kept the sidewalk running to the north side of the Deck plowed, meaning that at certain times of year, the only exit and entry point to the Hall would be along the sidewalk up the north side of the Deck. Mr. Lochrie stated that shinny players using the ice rink would generally park in the parking lot and use the sidewalk leading to the north side of the Deck to get to the rink. And Mr.

Saunders, the City officer at the time, testified that he usually used the north side of the Deck to enter the Hall. [ 104 ] In my opinion, the north side of the Deck would be the obvious path of approach and exit since it abutted the sidewalk leading to the Hall and would be the only path kept clear year-round. [ 105 ] The SCL former board members who testified stated that it was their usual practice to use the west steps rather than step up or down on the north side, even if they used the sidewalk to enter or exit the Hall.

This would mean that on entry, they would have to first encounter the north side of the Deck, then go around it to the west side in order to get onto the Deck. On exit, they would have to walk off the west steps, then go around the north side of the Deck to get onto the sidewalk. They generally denied that it was because the north side of the Deck was awkward to use as a step, but I see no other reason to avoid the shortest and most direct route to the Hall building. [ 106 ] Both the Plaintiff’s expert and the Defence expert, Mr. Hughes and Mr.

Otto, agreed that the north side, if used as a step, was a very awkward step. They both referenced the Code to say that a step needed to be under 8". Mr. Hughes said a step between about 4.9" to 8" would be acceptable, while Mr. Otto said a step should be about between 6" and 8". In response to Mr. Hughes’ opinion that the west side steps could have fit two intervening steps of about 5.25" each, Mr. Otto said steps of that height would be so far outside the norm as to constitute a hazard. Mr. Otto also said that the average person would be used to a step with a rise of about 7" to 7.5".

That would enable a “natural, nice movement” for walkers. [ 107 ] Whether the appropriate range was about 5"-8", or 6"-8", it is clear to me that a 16" step would be far outside the normal range of what people who used the north side as an entry or exit point would expect. It seems to me that the SCL board members at the time were also aware of this, or they would not have taken pains to avoid using the north side of the Deck. In any case, the SCL elected

to rent the Hall out to all kinds of community members and groups, presumably including people young and old, able and disabled, as well as people carrying heavy loads into the Hall. The SCL executive considered the building to be a public building. I find that they should have known that the north side posed a risk to users of the Hall. [ 108 ] The Defendants submitted the fact that they knew of no complaints or injuries from people walking off the north side of the Deck in the four years between the Deck being built and Mr. McNulty’s Accident. I find this inconclusive.

If a person creates a hazard and nobody happens to be injured by it for some time, this may be a matter of luck that there were no incidents or serious injuries rather than proof of safety. [ 109 ] In addition, I would note the evidence of Keith Patterson, who was at the Hall for the party the day of the Accident. Mr. Patterson, whose fiancé gave the party for a niece, said that at one point in the afternoon, he also fell off the north side of the Deck, although he said that was because his foot slipped backward off the Deck rather than because he was stepping off the Deck.

However, he remembers warning other guests about the north side of the Deck and having to lift children on and off the north side frequently during the party. He also stepped on and off the north side of the Deck frequently in carrying items for the party, and found the north side to be a “high” step. [ 110 ] In my opinion, the north side represented a reasonably foreseeable risk to a person exercising ordinarily diligence. The north side was directly in line with the most logical and obvious pathway to the Hall. It was far outside the norm for the usual height of a step.

And there were no signs or railing to prevent a visitor from using the north side of the Deck as a step or to warn visitors that it was an irregular step.

It is true that a person who was fully aware of the height differential or who was looking directly down at the ground could adjust for the awkwardness of the north step, but in my mind, it is within the realm of ordinary diligence to not be paying full attention to the peculiarities of a step. [ 111 ] Having found that the lack of a step on the north side of the Deck was a reasonably foreseeable risk, I must proceed to consider whether the SCL took reasonable care to prevent the risk. In fact, there is no evidence to suggest that the SCL did anything to prevent the risk.

It did not put out signs, it did not warn the renter of the risk so the renter could notify guests, it did not build a railing, attach a strip of metal to the north edge of the Deck, paint it or do anything to notify a visitor that the edge of the north Deck was anything other than a normal means of egress.

Rather, it counted on people being attentive enough and vigilant enough to know that they should avoid the north side of the Deck and use the west side steps, even if that meant avoiding the most direct route to the sidewalk. [ 112 ] I realize that in some cases, an Occupier can discharge its duty to take reasonable care to make the premises reasonably safe by “doing nothing”: Wood v. Ward , para. 14 . However, this is not one of those cases.

Having created a reasonably foreseeable risk to an ordinarily diligent visitor, I find that doing nothing in this case would not constitute reasonable care, and therefore I find that the SCL is liable in negligence as an Occupier under the OLA . B. Were Mr. Lochrie or the City Liable in Negligence under the Common Law? [ 113 ] In order to ground negligence under the common law, I must find that either Mr. Lochrie or the City owed Mr.

McNulty a duty of care, and they failed to discharge that duty of care. [ 114 ] Regarding the City, the Plaintiff argues that the City was under a duty to supervise and inspect the construction of the Deck and that its failure to discharge this duty of care led to Mr. McNulty’s injuries. [ 115 ] The Defendant argues that even if the City owed a duty to a user of the Deck, such as Mr. McNulty, it is protected by s. 530 of the Municipal Government Act , R.S.A. 2000, c. M-26 (“ MGA ”), and s. 12 of the Safety Codes Act , R.S.A. 2000, c. S-1 (“ SCA ”).

Those provisions state:– 530(1) A municipality is not liable for damage caused by

(

a) a system of inspection, or the manner in which inspections are to be performed, or the frequency, infrequency or absence of inspections, and (

b) a system of maintenance, or the manner in which maintenance is to be performed, or the frequency, infrequency or absence of maintenance. 12(1) No action lies against the Crown, the Council, members of the Council, safety codes officers, accredited municipalities or their employees or officers, accredited regional services commissions or their employees or officers, accredited agencies or their employees or officers or Administrators for anything done or not done by any of them in good faith while exercising their powers and performing their duties under this Act.

(2) The Crown, an accredited municipality, an accredited regional services commission and an accredited agency acting in good faith under this Act are not liable for any damage caused by a decision related to the system of inspections, examinations, evaluations and investigations, including but not limited to a decision relating to their frequency and the manner in which they are carried out. [ 116 ] In Condominium Corp. No. 9813678 v. Statesman Corp. , 2009 ABQB 493 , 16 Alta.

L.R. (5th) 74 , McDonald J. of this Court held that the effect of s. 12 of the SCA is to immunize the City against liability from “mere negligence without more” in performing its duties under the SCA , including its inspection duties: para. 236.

As a result, before the Plaintiff can succeed against the City, he must prove on a balance of probabilities that the City was not acting in good faith – that is, that it was acting in bad faith – in performing its duty to inspect. [ 117 ] However, the Plaintiff argues that s. 12 of the SCA is not applicable in these circumstances because the City’s duty to inspect did not stem from its “duties under this Act” or its “system of inspections,” but rather it stems from the License Agreement between the City and the SCL. [ 118 ] In my view, this argument is flawed.

First, there is no indication that the Licence Agreement has explicitly or implicitly ousted the application of the SCA or the MGA in this matter; rather, it includes the phrase “in compliance with all applicable legislation” in relevant paragraphs. Further, the basic principles of the law of contract and the rule of privity establish that the obligations arising under the License Agreement are contractual obligations that bind the parties to the contract. Mr.

McNulty is a stranger to the contract in this case and consequently, he would not be owed any obligation pursuant to the terms of the contract. [ 119 ] The Plaintiff has not alleged bad faith on the part of the City, nor can I find any on the evidence before me. As a result, the City is immunized from liability for negligence under the common law. [ 120 ] The Plaintiff has not provided any particulars nor argued any bases for Mr. Lochrie’s liability for negligence at common law; and neither is Mr. Lochrie the registered owner of the subject premises.

Consequently, he could not have owed a duty of care nor breached that duty to Mr. McNulty at common law in the present circumstances. C. Was Mr. McNulty Contributorily Negligent? [ 121 ] Mr. McNulty admits that he was not looking forward when he walked off the north side of the Deck because he was distracted by his grandson. He admitted in his testimony that he was partially at fault. [ 122 ] I would agree. I find that Mr. McNulty was negligent for not looking where he was going when he stepped off the north side of the Deck and this contributed to the Accident and his injuries.

I find he was contributorily negligent. D. How are Damages to be Apportioned? [ 123 ] The Plaintiff argues that the damages should be apportioned 75% for the Defendant and 25% for the Plaintiff if it is found that

there had never been a north side step before Mr. McNulty’s Accident, which I have found. He argues that any fault of his related to a momentary lapse in attention, while the Defendant’s fault relates to the creation of a risk that it had ample opportunity to mitigate or correct and failed to do so. [ 124 ] The Defendant maintains that the Plaintiff should be held 100% liable for the Accident, as he failed to keep a proper lookout. I have already rejected this position. [ 125 ] Where there is contributory negligence, damages are apportioned according to the comparative blameworthiness of the parties: Mahe v.

Boulianne , 2010 ABCA, 474 A.R. 223 at para. 18 . The Court is to consider the whole of the context, and there is no exhaustive list of factors to be considered: Mahe , para. 19. Some factors include: the nature of the duty owed by the tortfeasor to the injured person, the number of acts of fault or negligence committed, the timing of the various negligent acts, the nature of the conduct and the extent to which the conduct breaches the statutory requirements: Chae v. Min , 2005 ABCA 174 , 43 Alta. L.R. (4 th ) 1 at para. 9 .

Other factors are the likelihood of injury, the gravity of injury that might occur, the costs of avoidance, and the general practice of those engaged in a similar activity: Roper v. Gosling , 2002 ABCA 71 , 100 Alta. L.R. (3d) 231 at para. 23 . [ 126 ] There are no cases in Alberta that I know of that are directly on point, dealing with contributory negligence in Occupiers’ liability and steps.

However, a few cases give a helpful indication as to how the fault may be apportioned. [ 127 ] In Mahe , the defendant who owned a farm had hired the plaintiff electrician to install a new power pole and transfer wiring from the old power pole to the new one. The plaintiff fell from the old power pole when it broke at the base, twisting and throwing the plaintiff off. The Court of Appeal reduced the trial judge’s apportionment of 75% fault against the defendant to 40%, increasing the plaintiff’s fault from 25% to 60%.

In its reasons, the Court of Appeal noted that while the defendant had failed to warn the plaintiff that the pole was rotten at the base, the plaintiff was an experienced professional who had surveyed the situation and directed his own mode of work, the condition of the pole was an obvious issue that necessitated inquiry on the part of the plaintiff, the defendant could not be expected to supervise because he was confined to a wheelchair in his house, and the plaintiff had failed to wear a safety harness which was standard when doing work of this kind. [ 128 ] In DeWaard v.

Capture the Flag Indoor Ltd. , 2010 ABQB 571 , Strekaf J. apportioned 25% of the fault to the plaintiff, who had injured his foot when he fell through a hole in a dividing wall at a laser tag facility.

The Court found the plaintiff was contributorily negligent because he knew but had disregarded the rule against climbing the dividing wall, while the defendant bore 75% of the fault because it had created a “hidden hazard” when it covered the hole with a particle board and not warned laser tag players: para. 15. [ 129 ] In Vanaalst , the plaintiff, a courier, was apportioned 30% at fault for injuries he received after he fell off a ramp onto a concrete floor as he exited a building. The defendant was judged 70% at fault.

In comparing the relative degrees of blameworthiness, Park J. noted that the defendant was at fault because the ramp was too narrow and visitors trying to exit through the heavy door would be funnelled to the edge of the ramp where they could easily lose their balance: para. 26. The Court found that handrails or guardrails might have prevented injury, and that no warning signs had been posted. However, the plaintiff, who had entered via the ramp, was contributorily negligent because of his “forgetfulness” regarding the need to take care, and his lack of attention in where he placed his foot: para. 39.

Notably, the apportionment of fault was independent of any finding that the defendant had breached the applicable building code: para. 29. [ 130 ] In this case, Mr. McNulty’s fault is that he allowed himself to be momentarily distracted as he walked off the north side of the Deck, with the result that he was not looking where he was going and did not change his gait to accommodate the steep drop off the north side. However, Mr. McNulty was not acting recklessly or breaking any rules, nor had he consumed any alcohol or anything else that would impair his judgment.

It was daylight and he was in familiar territory and facing forward while walking forward. His only fault was to allow his attention to be diverted at a critical moment. [ 131 ] The fact that Mr. McNulty was a frequent user of the Hall does indicate that he should have had some knowledge of the risk. Mr. McNulty’s explanation, of course, is that there had been an intervening step on the north side that had been removed prior to the Accident. Since I have found this not to be true, I cannot find this to be a mitigating circumstance to his fault.

However, I would note that as in Vanaalst , momentary forgetfulness did not lead to overwhelming relative blameworthiness. I would also note that if Mr. McNulty was mistaken as to a pre-existing north side step, it was perhaps not surprising considering that the other two sides of the Deck had steps and frequent users would be used to being able to take advantage of steps leading off the Deck.

[ 132 ] In building a Deck with a steep drop-off on the side that was the most logical entry point into the Hall, the SCL created a hazard to its visitors, who not only were community members and members of the public, but on occasion were also paying guests. The SCL did not pay a great deal of attention to safe design of the Deck, and chose to have it built quickly without the approval of the City and without referring to the building codes, which might have offered some clue as to some of the safety issues. The SCL had ample time to correct the hazard prior to Mr.

McNulty’s Accident, and failed to do so even though there were readily available options, such as building an intervening stair (which it has since done) or guardrail; putting up warning signs; or drawing attention to the edge by applying paint or a metal strip. [ 133 ] As a result, I find that the SCL is liable for 50% of the damages while Mr. McNulty bears liability for the remaining 50%. E. What Is the Quantum of Damages? Plaintiffs’ Position on Quantum of Damages (

a) Pre-Incident health of John McNulty [ 134 ] The Plaintiffs submit that prior to the incident, Mr. McNulty was in good health and that he played soccer until he was 52. He was coaching both the Victoria soccer and the Croatian soccer teams at the time of the incident. [ 135 ] That at one point he fell at St. Joseph’s High School while working there as a maintenance worker and hurt his buttocks. In 1996 he had left knee surgery and had swelling in his knee. He had some back and neck problems before the accident but he did not miss any work. Overall, Mr.

McNulty was physically active and generally in good health with the left knee a chronic or recurring issue. [ 136 ] On July 12, 2000, one month before the incident, Dr. Reilly did a physical for Mr. McNulty for his insurer and indicated that Mr. McNulty had arthritis in his left knee, deviated septum, and the knee surgery four years before. He had some arthritis in his feet before the Incident and also had arthritis in his right knee since the age of 31 or 32. (

b) Post - Incident Injuries [ 137 ] The Plaintiffs indicate that post-Incident, Mr. McNulty suffered a ruptured right quadriceps. Three of the four quadriceps muscles were torn above the knee. That after the incident, Mr. McNulty was taken to the hospital and had surgery with Dr. Hunka. He was placed in a cast from thigh to toe and in hospital for four days and then discharged to the Grandview Extended Care facility. He was there for twelve more days and tried going back to his apartment to live with his daughter.

This did not work well and he had to go live in another apartment for two weeks which had a bedroom on the same floor. He had three different casts over about 6 weeks. [ 138 ] They state that on October 4, 2000 he was involved in a motor vehicle accident and recalled having hurt his neck and going to Forest Heights Chiropractic. [ 139 ] On Dr. Hunka’s recommendation Mr. McNulty went through physical therapy for his quadriceps injury. He gained about 15 pounds due to lack of activity. At one point he fell down some stairs but was okay in two to three weeks.

He fell another time after he had the cast off, always falling on his buttocks. [ 140 ] Mr. McNulty’s rehabilitation progressed very slowly and thirteen months post accident he was still attending physiotherapy three times per week. He was still walking with a limp and his strength was only 70%. His progress was so slow the insurance company sent him to a consultant of their own who confirmed that he could not return to work.

[ 141 ] The Plaintiffs note that as at trial time, Mr. McNulty continues to have difficulty. He still lacks full range of motion and strength in his right knee. He has pain with excessive flexion greater than 70 degrees. Mr. McNulty still experiences intermittent pain in his right knee area. He has difficulty going up or down stairs. He cannot kneel or squat or stand for prolonged periods. He used to play old timers (senior) soccer up until the time of his injury but has been unable to do so since.

Further, there is a permanent defect present in right quadricep muscle (an obvious deformity at the site of the tear) and he has a 17 cm scar from the incision just above his right knee. He still has residual swelling in his right leg and takes water pills daily to treat this condition. [ 142 ] From an emotional perspective, he gets depressed. This has effected his social life and life generally in a significant way. He did use alcohol to self-medicate at times in the past. [ 143 ] According to Pamela Bradley’s evidence Mr. McNulty can drive short distances but she tends to longer drives in the city.

He wants to sit in the front row or an aisle seat when he goes to movie a with his grandson, Julian, so he can stretch out his leg. She testified that Mr. McNulty pick up Julian after school and cared for him on Thursday afternoons for half a day. (

c) Evidence of Dr. Hunka and Dr. Greenhill [ 144 ] The Plaintiffs refer to the evidence of Dr. Hunka who says the quadriceps injury that occurred is a major injury and stepping off a step is a common mechanism for this type of injury. They say that Dr. Hunka and Dr. Greenhill agree this is a permanent injury and that there is a defect in the muscle. According to their submission, Dr. Hunka assesses a 10% permanent impairment while Dr. Greenhill says 7% and would agree to a figure between 7% and 10%, according to the 5 th Edition of the Guides. [ 145 ] Dr.

Greenhill noted in his report of 22 October, 2008 that a subsequent MRI suggested the middle third of the repaired tendon separated at some point following the repair but the inner and outer parts of the muscle were in continuity. [ 146 ] Dr. Hunka confirms in his report dated February 1, 2002 that although Mr. McNulty shows evidence of pre-existing osteoarthritis (OA) in both knees, the major portion of his impairment “at this time is related to his quadriceps rupture” and that this has no doubt also caused an exacerbation of symptoms related to his underlying osteoarthritis process. Dr. Greenhill rejects Dr.

Hunka’s opinion that the injury would have aggravated the OA in the right knee, his opinion does allows for an exacerbation. Dr. Hunka said that any change in OA is permanent. Dr. Greenhill conceded that osteoarthritis can never be reversed. [ 147 ] The Plaintiffs submit that Mr. McNulty has been doing all he could to mitigate his injury. Swimming, gym, physio, retraining. He was supporting Pamela as a student with less money coming in; and note that there is no evidence he was a slacker. (

d) Evidence of Dr. McDougall [ 148 ] The Plaintiffs point to the fact that the Millard Centre said he couldn’t return to work in April 2002 as a welder after a two day Functional Capacity Evaluation (FCE) with good effort. That Great West Life accepted the evidence and opinions from Hys Center and Millard that Mr. McNulty was totally disabled as a welder, and later that becoming a Health& Safety Officer would take too long and he was likely not competitively employable. [ 149 ] They contend that the suggestion by Dr.

McDougall that the osteoarthritis in the left knee likely would have accelerated such that by 2002 Mr. McNulty would require accommodation by his employer is speculation. The Plaintiffs note that Mr. McNulty had no complaints about his left knee to Dr. Reilly between the arthroscopic surgery in 1996 and the injury on August 20, 2000. [ 150 ] They state that the cause of the swelling of the right ankle is a mystery to Dr. Greenhill. But that Dr. Hunka said it is because of the injury. Mr. McNulty says the swelling of the right ankle contributes to his disability. [ 151 ] The Plaintiffs’ submit that Dr.

McDougall is a general practitioner and not a specialist in terms of having a recognized

[ 151 ] The Plaintiffs’ submit that Dr. McDougall is a general practitioner and not a specialist in terms of having a recognized specialty. They note that Dr. McDougall said he worked “in industry” for many years starting in 1973. That he did not assess Mr. McNulty personally as he only looked at records and tried to provide comments on disability and fitness to work. Based upon his document review, Mr. McNulty had pre-existing osteoarthritis in both knees, the left worse than the right. Dr. McDougall felt that Mr. McNulty would have had some work restrictions based upon him being a welder.

The Plaintiffs observe that of course, Mr. McNulty was working as a welder at the time of the incident and there is no suggestion he was limited at work or had restrictions placed upon him. [ 152 ] Dr. McDougall agreed that the data showed that Mr. McNulty was physically capable of doing welding in 2000. Dr. McDougall agreed based upon the 2002 FCE by Janet Smith that Mr. McNulty would have had some problems with weight bearing and climbing as a result of his quadriceps injury. [ 153 ] Significantly, Dr. McDougall reviewed Dr. Hunka’s February 1, 2002 report and agreed with Dr.

Hunka’s opinion that the quadriceps’ injury was a major problem. Dr. McDougall agreed that osteoarthritis is progressive, but that you can have osteoarthritis without pain. He agreed that trauma can accelerate osteoarthritis and cause a rapid decline in health; and that surgery could have accelerated the osteoarthritis in the right knee. (

e) Evidence of Dr. Reilly [ 154 ] According to the Plaintiffs, when Mr. McNulty was seen on September 4, 2000 by Dr. Reilly, he felt that he had a major quadriceps injury but that he would ultimately be able to work. That there was inflammation of the joint lining. Subsequently, on February 12, 2002, Dr. Reilly completed a form indicating that Mr. McNulty was permanently disabled. [ 155 ] Dr. Reilly said that the motor vehicle accident affected Mr. McNulty’s ability to do his welding job for two to three months. Contrary to Dr. Hunka, Dr.

Reilly felt that the ankle swelling was not related to the quadriceps injury. As of July of 2005, Dr. Reilly felt that Mr. McNulty was permanently disabled and there was not a job that he could do at that time. [ 156 ] In terms of depression, Dr. Reilly did not feel that Mr. McNulty had classical depression, but was still effected emotionally as he could not do what he used to such as playing soccer and coaching and he was frustrated by being around the house. [ 157 ] Mr. McNulty had swelling in the left ankle greater than the right in March of 2007.

There was swelling in both legs being worse in the uninjured side (ie. the non-quadriceps injured side). Dr. Reilly felt the swelling at that time was secondary to medication he was taking for blood pressure. On re-examination, Dr. Reilly confirmed that there were no complaints in relation to the left knee from 1996 to the date of the incident of August of 2000. [ 158 ] Although Mr. McNulty had prior surgery on his other knee and degenerative arthritis in both knees before his fall, “but for” his fall, he would not have been disabled.

The Plaintiffs submit that these degenerative processes in his knees would have been gradual. The fall was the material contribution to his disability. According to Athey v. Leonati , the defendants cannot attempt to pass off liability to non-tortious causes such as pre-existing degenerative arthritis. [ 159 ] The Plaintiffs submit that though there are not many cases on a Quadricep Injury in Canada, the injury affects mobility in a serious way just as a broken ankle or a torn achilles heel would do. The injury is permanent.

They contend that updating the cases submitted by parties to 2010 dollars merits a damage award of $100,000. Loss of Income (

f) Evidence of Janet Smith [ 160 ] The Plaintiffs note that Janet Smith concluded in her July 26, 2002 report that Mr. McNulty’s functional profile as determined

by the evaluation is consistent with his injury history and subsequent surgical repair of a ruptured right quadriceps muscle, and with his self-report of limitations in performing his daily activities. That Mr. McNulty has insufficient capacity to perform the required demands of his customary occupation as a welder. [ 161 ] It was indicated in the Plaintiffs’ submission that Janet Smith had a further opportunity to assess Mr. McNulty by way of an FCE reassessment on March 31, 2010 as reflected in her report of May 3, 2010. Ms.

Smith performed an update FCE and reviewed additional documentation including charts and medical reports. Mr. McNulty indicated at that time that he had the job at Sentrimax where he could sit most of the day where he found that most welding tasks were difficult to perform than they had been at pre-incident. As well, he had to rely on apprentices or other workers to do any lifting or carrying tasks that were required standing. Janet Smith agreed that Mr.

McNulty had insufficient capacity to perform the required demands of his customary occupation as a welder without significant modifications. [ 162 ] The Plaintiffs submit that it was the Tort of the Defendants that threw Mr. McNulty into the competitive marketplace and they should bear the brunt of the plaintiff’s age, disability, and lack of competitive ability to get work with other employers. They say that Mr. McNulty obtained his Grade 12 standing in Scotland. He was signed as a professional soccer player at age 17 and played for two years after high school.

The owner of one of the teams brought him to the ship yards at age 19 and got him started in the welding trade. He obtained welding and drafting training in Scotland. He came to Canada in 1975 to work for Stelco and spent 3 to 4 years there, then went to work at Mountain Rig, and then went to Angola where he worked 28 days in and 28 days off. When he came back to Canada he worked construction in Yellowknife and elsewhere and made up to $9,000.00 per month. [ 163 ] He worked subsequently with Waiward Steel and was laid off in 1999.

Within a few weeks, he started with BW Rig Repair (BW Rig) in 1999 at $19.00 per hour and was earning about $20.00 an hour at the time of the incident. He had no plans to retire. His work at BW Rig involved building and repairing land drilling rigs. He had to climb up a platform about 6 feet up and was at times 12 to 14 up building and repair welding. [ 164 ] The Plaintiffs state that although Mr.

McNulty indicated initially that he was receiving $2,000.00 a month clear from Great West Life as compared to $4,500.00 clear after tax from BW Rig, he later acknowledged that he made an error and $4,500.00 per month was approximately his gross income. The BW Rig job was there for him if he could have returned to it and he had friends working there. He always hoped that he might be able to go back. With his injured left leg he could not do it. There was too much climbing and kneeling. He was unfit for that type of work and could not stand as long as he needed. [ 165 ] Mr.

McNulty started working part time in 2005 with Sentrimax. In 2006 he went full time when he found that his leg could stand up to the daily routine which allowed him to sit while working. He obtained the job at Sentrimax due to fri

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