O’Brien v. TR Westcan Inc. Date:, 2012 BCPC 89

Citation: O’Brien v. TR Westcan Inc. Date: 20120329 2012 BCPC 0089 File No: 1136815 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: WAYNE O'BRIEN CLAIMANT AND: TR WESTCAN INC. dba TIPPET RICHARDSON DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP DONALD YULE Appearing on their own behalf: Wayne O'Brien Appearing for the Defendant: Richard Yalowsky (Articled Student) Place of Hearing: Vancouver , B.C.

Date of Hearing: February 22, 2012 Date of Judgment: March 29, 2012 INTRODUCTION [ 1 ] The Claimant’s claim is for damage to personal property allegedly caused during the transport of his personal effects by the Defendant from 2875 Osoyoos Crescent to 1326 West 13 th Avenue in Vancouver, British Columbia, on June 30, 2011. The major item alleged to be damaged was a valuable sculpture which the Claimant says he discovered to be broken on unpacking it. The claim for the damaged sculpture is $3200.00.

There is also a claim for damage to furniture of $700.00. [ 2 ] The claimant purchased insurance in the amount of $30,000.00 to cover damage occurring during the move. In his written submission, the Claimant withdrew claims relating to the hourly rate charged and the number of hours the move took. [ 3 ] The Defendant denies responsibility for any of the claims. With respect to the damaged sculpture, the Defendant asserts that under the terms of the Bill of Lading, it was not liable for fragile items, except for proven negligence, unless the items were both packed and unpacked by the Defendant’s employees.

In this case there is a dispute as to whether the sculpture was “packed” by the Defendant; it is agreed that the sculpture was unpacked by the Claimant. The Defendant asserts that the sculpture was likely damaged during unpacking and in any event there is no evidence of any negligence during the move. The Defendant further asserts that the furniture damage was pre-existing and in any event was not caused by the move. Finally, after the damage claim was reported to it, the Defendant

was denied an opportunity to inspect and evaluate the damage which it says disentitles the Claimant to any claim. CLAIM FOR THE DAMAGED SCULPTURE [ 4 ] The Defendant’s revised written estimate dated May 30, 2011 (the “revised Estimate”) quoted an estimated cost of $980.00, including insurance, plus HST. The moving services included: “careful wrapping of all furnishings in clean, thick and soft quilted furniture pads” and “plastic wrapped upholstery and place beds into new plastic bags prior to moving”.

The revised Estimate also described optional Transit Protection coverage as follows: “$30,000 full replacement value protection ($100 deductible) can be purchased for an additional fee of $105. Should you decide not to purchase this coverage, the movers’ liability is limited to $0.60 per pound, per article. Please advise”. [ 5 ] In an email exchange on May 30, 2011, the Claimant asked what the insurance covered and whether it covered “any breakage en route”. In reply, Mr. Fast stated: The optional Transit Protection provides Full Replacement Value Protection” ($100 deductible).

If anything is damaged it is either fixed to your satisfaction or replaced with a new item. There are limitations on cartons you pack . If the outside of the carton is damaged causing damage to the contents it is included. But if there is no damage to outside of the carton it won’t be covered.” (emphasis added) [ 6 ] The Bill of Lading, which was signed by the Claimant on the day of the move contains on the reverse side terms and conditions respecting the liability of the carrier. The relevant terms in this case are Sections 1 and 5(B)(i).

Section 1 provides that the carrier is liable for any loss or damage to goods except as thereafter provided.

Section 5(B)(

i) provides as follows: 5 Exception from Liability The carrier shall not be liable for: (

B) Other than because of his, his agents or employees’ negligence (

i) damage to fragile articles that are not packed and unpacked by the contracting carrier, his agent or employees. [ 7 ] The Claimant frankly acknowledged in evidence that he did not ask about the “limitations on cartons you pack” referred to in Mr. Fast’s email. The Claimant was thus not aware at the time of the move of the potential significance on coverage of his decision to pack and unpack his own goods. The Claimant asserts that he advised Mr. Fast at the time of booking the move that he had valuable, fragile articles. Mr.

Fast denies any such pre-move knowledge and correctly notes that the moving record shows no charge for packing nor for packing materials, except for four wardrobe boxes which were not used for the sculpture or furniture. [ 8 ] The Claimant did have fragile valuable articles, namely the sculpture and a painting which was fortunately transported without incident. One of the reasons he purchased the insurance was because of the value of his possessions. I find that the Claimant did disclose to Mr.

Fast that he had valuable articles but there was no discussion about any limitations on coverage. [ 9 ] On the day of the move, the claimant says that he showed the head mover, Mr. Hayden, the two valuable articles. One was the sculpture and the other was the large painting. The Claimant removed the sculpture from its box and put it down, showing it to Mr. Hayden. Mr. Hayden then picked it up and placed it back into its box which Mr. Hayden then sealed with brown tape. The box had “fragile” or some such wording on it. Mr. Hayden does not really recall anything specific about the packing of the sculpture.

He correctly states that he was not asked to bring any special packing materials. The Claimant says that Mr. Hayden “just happened” to pack the sculpture. I accept the Claimant’s evidence that he showed the sculpture to Mr. Hayden and that Mr. Hayden put it back into its box and sealed it. I do not however consider that this action by Mr. Hayden constituted “packing” the sculpture; rather Mr. Hayden replaced the sculpture in the box as prepared by the Claimant. How the sculpture was protected was not discussed. The Claimant did not ask Mr. Hayden for his opinion regarding the adequacy of the packing.

At the time, the Claimant did not appreciate that “who packed” fragile items mattered. Accordingly I conclude that the Defendant did not pack any of the damaged items. It is not disputed that the Claimant unpacked the items, including the sculpture at his new location on July 1-2. IS THE EXCLUSION ENFORCEABLE? [ 10 ] The written evidence relating to the terms of the contract for the move come from the revised estimate dated May 30, 2011, the email exchange also on May 30, 2011 and the Bill of Lading. The Bill of Lading was signed by the Claimant twice on moving day.

He signed once at the beginning of the move and once at the end of the move. At the beginning of the move he signed the Bill of Lading as shipper to accept the terms on both sides of the Bill of Lading and to acknowledge that the liability of the carrier was limited. The Claimant signed the front of the Bill of Lading below the heading “MOVING CONDITIONS: IMPORTANT”. Between the heading and his signature was the following text: I agree to the terms stated on both sides of this contract (see back for detailed terms).

I am the legal owner of the goods, or the authorized agent of the legal owner of the goods to be moved or stored. I understand that the carrier liability is limited by a term or condition of carriage contained in this agreement and make the declaration of value set forth above. [ 11 ] The reference to the “declaration of value above” is to another portion of the front of the Bill of Lading in which the Claimant declared the value of the shipment to be $30,000, in substitution for the otherwise applicable value of $0.60 per pound per

article to a maximum of $50 per

article or carton. The reverse side of the Bill of Lading has 22 terms and conditions in print size that is very small and difficult, but not impossible to read.

Section 5(B)(

i) is the

section among the printed terms and conditions upon which the Defendant relies.

[12] The evidence is, and I find as a fact, that when the Claimant signed the Bill of Lading, agreeing to all of the printed terms andconditions, he had not read and was not aware of the provisions of

Section 5(B)(i). The question then is whether in these circumstancesthe Defendant may rely upon this exclusion. I agree that the law is as cited by Mr. Yalowsky in his written submission. I wouldsummarize the applicable principles as follows:

a) A party who signs a document is bound by its terms even though the party did not read or understand the document;

b) A party seeking to rely on an exclusion of liability, which the signing party has not read, must show that a reasonable attempt hasbeen made to bring the signing party’s attention to the terms contained on the form; and

c) The obligation on the party seeking to rely on an exclusion of liability to take reasonable steps to apprise the signing party of theterms only arises in circumstances that a reasonable person should have known that the signing party was not consenting to the terms (Carroll v. Silver Star Mountain Resorts Limited (1988) (BC SC), 33 BCLR 2nd 160; Loychuk v. Cougar MountainAdventures Limited

(2011) BCSC 193; Arndt v. Ruskin Slow Pitch Association

(2011) BCSC 1530). [13] There is no evidence that the Defendant’s employees took any steps on the day of the move to bring to the Claimant’s attentionthe restriction of liability for “fragile articles” in

Section 5(B)(i). The Claimant did not have any opportunity to see the printed terms andconditions on the Bill of Lading until the beginning of the move. There is no evidence that the Claimant even looked at the terms andconditions on the reverse side of the Bill of Lading on the morning of the move. I find that he simply signed it and initialed it in theplaces indicated on the front of the document.

Based on what happened on the morning of the move, the Defendant’s employees oughtto have known that the Claimant was not consenting to terms and conditions that he did not know about. [14] I do not accept the Defendant’s argument that because this particular or a similar exclusion is “common in the moving industry”it is therefore reasonable for a mover to believe that all customers, including the Claimant, consent to it merely by signing the Bill ofLading. I reach this conclusion for two reasons.

First, in the Carroll decision, the court stated at paragraph 22 as follows: But situations may arise which suggest that the Party does not intend to be bound by a term.

In Tilden the hasty, informal way in whichthe contract was signed, the fact that the clause excluding liability was inconsistent with the overall purpose of the contract, and theabsence of any real opportunity to read and understand the document given its length and the amount of small print on its reverse sideled the court to conclude that the Defendant should have known that the Plaintiff had no intention of consenting to the onerous exclusionin question. In these special circumstances, there was a duty on Tilden to take reasonable measures to bring the exclusion clause to theattention of Mr.

Clendenning. [15] I think the above description aptly describes the circumstances in which the Claimant signed the Bill of Lading in this case. [16] Second, the reference to the acknowledgment of the limited liability of the carrier is tied to the declaration of values. Areasonable customer in my view would think that this sentence was warning those customers who did not declare and pay for a highervaluation of the goods, that the carrier’s liability was only $0.60 per pound per

article to a maximum of $50 per

article or carton. Thesentence was not directed towards the exceptions from liability in

Section 5 of the printed terms and conditions. [17] The narrow question then in my view is whether the single sentence in the May 30 email stating “there are limitations on cartonsyou pack” sufficiently discharged the Defendant’s obligation to bring to the Claimant’s attention the restriction for fragile goods notpacked and unpacked by the mover. The Claimant admits that he did not ask what the limitations were.

A more useful and informativestatement by the Defendant to someone who was buying Transit Protection coverage for $30,000 because he owned valuable goodsmight have been: “unless we pack and unpack any fragile articles, there will be no coverage if they are damaged, unless you can provethat we were negligent and our negligence damaged your fragile articles”. [18] I do not think the reference to “limitations on cartons you pack” sufficiently satisfies the Defendant’s obligation to takereasonable steps to bring the exclusion of liability relied upon to the Claimant’s attention.

It does not make reference to a restriction on“fragile articles” at all. The exclusion relied upon is in the Bill of Lading. Its terms would presumably apply (if properly brought to theattention of a customer) even where the customer did not pay for the insurance provided by the Transit Protection plan. Moreover, thereference to whether the outside of a carton is damaged adds an additional element of ambiguity and uncertainty namely that the onlylimitation on cartons packed by the customer relates to whether there is exterior carton damage. That has nothing to do with the literalterms of

Section 5(B)(

i) which would provide no coverage for fragile articles not packed and unpacked by the carrier, even if the cartonwas squashed (albeit without proven negligence by the carrier). [19] Accordingly, on this issue, I conclude that the Defendant is not entitled to rely on

Section 5(B)(

i) of its printed terms andconditions because there was in the circumstances of this contract an obligation to take reasonable steps to bring the exclusion to theattention of the Claimant and the Defendant failed to do so either by the wording and format of the Bill of Lading or by the contents ofthe May 30 email. [20] The Defendant says that the sculpture was most likely damaged during the unpacking process by the Claimant. I accept theClaimant’s evidence that the sculpture was whole when it was packed and was broken when he unpacked it.

There is photographicevidence of some damage to the exterior of the box that contained the sculpture. This is consistent with something happening to the boxduring the move. I accept the Claimant’s evidence that the exterior box damage was not present prior to the move. I accordingly findthat the damage did occur during the move and that the Defendant is liable for the damage. CONTRIBUTORY NEGLIGENCE [21] The Defendant asserts that a lack of proper packing materials contributed to the damage to the sculpture. It appears that no

special packing materials were placed around the sculpture in its box. I accept the evidence of Mr. Hayden that he would have brought packing materials and packed the sculpture differently, so as to better protect it from damage had he been asked to pack the sculpture. While there is some external damage to the box containing the sculpture, it is comparatively minor which leads me to conclude that inadequate packing significantly contributed to the resulting damage. I would apportion fault equally between the parties.

QUANTUM OF DAMAGE – THE SCULPTURE [ 22 ] The Claimant seeks damages for the broken sculpture of $3200. It was an original sculpture made by a craftsman, Pauline Gagnon. The Claimant purchased it in 1995 for $1650. In his initial claim submission to the Defendant, the Claimant valued the sculpture at $1650 and suggested it was 50% damaged. At the hearing he introduced an email from Pauline Gagnon dated August 16, 2011, apparently from France indicating the actual value of the sculpture was $3200 CAD for a 36x24 inch piece.

At the hearing the Claimant indicated that he was going to have to ship the broken sculpture to Ms. Gagnon in France in order for her to repair it and thus restore its original value. Attached to his written submission is a Certificate of Authenticity entirely in French, dated February 23, 2012 which purports to certify that a 36x24 inch sculpture entitled “Tursus” dated 1993 was the original work of Ms. Gagnon and the current estimated value of it is $3200 CAD (the “Certificate”).

The Defendant objects to the admissibility of this Certificate on the basis that the evidence closed-8 at the conclusion of the hearing on February 22, 2012, the Claimant declined to provide copy of the Certificate to the Defendant’s counsel prior to delivering his written submission and the Defendant has been denied the opportunity to cross-examine the Claimant with respect to the Certificate. All of the foregoing would be forceful objections in another Court but are less forceful under the rules of procedure that are designed to facilitate lay litigants.

Section 20(

a) and 22(

j) of the Rules permit an adjudicator to vary formal rules of evidence and receive evidence in a way that the adjudicator thinks is appropriate. I would accordingly accept the Certificate as evidence of the value of the sculpture. If necessary, I would permit the Claimant to re-open his case for the purpose of tendering this Certificate. [ 23 ] The admission of the Certificate, and even the acceptance of its valuation does not however determine the measure of damages sustained. If the sculpture were damaged beyond repair, then the measure of the loss would be $3200.

However, clearly the sculpture is capable of repair, because that is what the Claimant intends to do. It is not clear whether repairs by Ms. Gagnon would fully restore the value of the sculpture. If it did, then the measure of the loss would be the cost of repairs, including shipment to France, if that were a reasonable approach to having the repairs done. In his Trial Statement, dated January 31, 2012, the Claimant asserted that the sculpture could not be repaired.

In his written submission dated February 27, 2012 the Claimant suggests that the lost value can be restored but at the cost of shipment to Paris, France, and some further charge by the artist. There is no evidence of either of these amounts. [ 24 ] The Defendant submits that the damage to the sculpture should be valued at $400. The starting point for that valuation is the Claimant’s original estimate of damage at $825 which the Defendant asserts is likely an overstatement. [ 25 ] In this unsatisfactory state of the evidence, I am prepared to find that the value of the sculpture is $3200 CAD.

I am not however prepared to conclude that it is reasonable to have the sculpture shipped to Paris in order to be repaired by the original artist. It is far from clear that the sculpture cannot be properly repaired by a qualified local artisan. The cost of having the sculpture shipped to Paris for repair by the original artist may well exceed the cost of the repairs by a qualified local artisan together with an allowance for some diminution of value attributable to repairs being made by someone other than the original artist.

In these circumstances I fix the damages with respect to the sculpture at $2000 on the basis of repair by a local qualified artisan and an allowance for diminution of the value. As responsibility for the damage to the sculpture is divided equally, the Claimant shall recover $1000 with respect to the damaged sculpture. DAMAGE TO FURNITURE [ 26 ] The Claimant seeks $700 for damage to seven items of furniture including a table, china cabinet, wall unit, double dresser, coffee table and Oriental chair. He asserts that the Defendant failed to shrink wrap the furniture as required.

The Bill of Lading special instructions required the driver to shrink wrap “all upholstered goods”. I do not consider the items of furniture to be “upholstered goods”. There is no estimate provided for the cost of repairs. [ 27 ] The Defendant asserts that there is no evidence indicating that any damage to the furniture occurred during the move.

Apart from a broken drawer brace, the Defendant submits that the “mostly knicks and scrapes” shown in photographs are more likely pre- existing wear and tear. [ 28 ] I accept the Claimant’s evidence that there was damage to his furniture during the move, and he is not attempting to have pre- existing damage fixed at the expense of the Defendant. None of the furniture items are “fragile articles” and accordingly there is no reason to apportion liability for the damage to them.

In the absence of any estimate of repair costs, I award the Claimant $350 on account of the damaged furniture. [ 29 ] One over-arching defence submitted by the Defendant was the Claimant’s refusal to allow inspection of damaged items. Mr. Fast of the Defendant did inspect the damaged items at the Claimant’s residence on July 14, 2011 and took such photographs as he thought appropriate. On July 15, 2011 the Defendant advised the Claimant that it did not accept responsibility for damages when it did not pack and unpack fragile items.

I consider this to be a denial of the claim and would not accede to this ground of defence. [ 30 ] The Claimant is accordingly entitled to damages of $1000 with respect to the sculpture, $350 with respect to the furniture for a total of $1350. From this amount the $100.00 deductible needs to be subtracted. [ 31 ] The Claimant shall have judgment for $1250 plus $156 as filing fees and $20 as service fees. [ 32 ] Judgment accordingly.

_______________________ Justice of the Peace, Donald W. Yule, Q.C.