Jeff Nelson - v. -, 2015 SKPC 64

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2015 SKPC 064 Date: April 23, 2015 File: SC#324 of 2013 Location: Saskatoon ______________________________________________________________________________ Between: Jeff Nelson - and - J.H. Enterprises

(1969) Limited Jeff Nelson For the Plaintiff Cheyenna Campbell For the Defendant JUDGMENT D.E. LABACH , J

INTRODUCTION [ 1 ] The Plaintiff, Jeff Nelson, sustained damage to his truck as he was driving through a warehouse owned by the Defendant, J.H. Enterprises

(1969) Limited. He contends that the Defendant is at fault for the accident because the warehouse was in disarray, was unsafe and the yardman did not guide him through the warehouse. [ 2 ] The Defendant company denies that they were liable for the collision. While they admit that the accident occurred in their warehouse, they maintain that the Plaintiff was not paying attention, was not keeping a proper lookout and was traveling too fast as he drove through the warehouse. [ 3 ] Four witnesses testified in the trial - the Plaintiff, Jaimin Jariwala, Jeff Rains and Lloyd Postnikoff. Mr.

Jariwala was the yardman working in the Defendant’s warehouse on the day in question, Mr. Rains was the assistant manager on duty that day and Mr. Postnikoff was the Vice-President of Operations for the Defendant. Of these four witnesses, only the Plaintiff and possibly Mr. Jariwala were in the warehouse when the accident occurred. FACTS [ 4 ] On November 15, 2012, shortly after 5:30 p.m., the Plaintiff went to J & H Builders Warehouse (J &

H) on Avenue C North in Saskatoon. J & H is a building home centre owned by the Defendant company. He went to the home centre to purchase insulation as he was finishing his basement. [ 5 ] This J & H site was comprised of a retail store and a number of warehouses. The Plaintiff parked his 2004 F150 truck outside the warehouse at the back of the home centre. He then went into the store to purchase the insulation he required.

After paying for the insulation he went back to his truck to go into the Defendant’s warehouse to pick up what he had purchased. [ 6 ] At the back warehouse doors he was met by Jaimin Jariwala, one of the yardmen employed by the Defendant. As a yardman, Mr. Jariwala’s job was to look after customers who are sent into the warehouse to get product, put product away and clean up the warehouse. Mr. Jariwala told the Plaintiff that his insulation was stored in another warehouse and to get to that building, he would have to follow him through the main warehouse.

It is at this point that the Plaintiff’s testimony and Mr. Jariwala’s testimony diverge. [ 7 ] The Plaintiff testified that Mr. Jariwala got on a forklift while he got back into his truck. He drove into the warehouse to follow Mr. Jariwala but by the time he entered the warehouse, Mr. Jariwala was nowhere to be seen. He said that he began following the driving lane through the warehouse. At one point the lane turned approximately 45 degrees and then straightened out again. At this turn, the driving lane narrowed.

There appeared to be pallets of material and customer orders piled up in front of him, a large blue set of ladder stairs on his left hand side and some blue lumber carts on his right hand side. [ 8 ] Since Mr. Jariwala was not around to guide him through this area, the Plaintiff said that he stopped his truck, opened his door and looked toward the front of his truck to see if he could get through this space. Satisfied that there was enough space to get past the ladder stairs and the pallets, he checked his right side mirror to see where the blue lumber carts were.

He could see the tops of the carts and it appeared that he had about twelve inches of clearance from his truck to these carts. Believing he could negotiate the turn, he began moving forward. [ 9 ] Suddenly he heard a loud noise. He stopped his truck and got out to see what had happened. When he went around to the passenger side of the truck, he saw a lumber cart wedged around the rear wheel. It appeared that a corner of one of the blue lumber carts had got caught on his rear passenger tire and the cart had tipped over into his truck. The lumber cart struck the truck by the back rear tire.

The cart had two prongs on it and one of the prongs hit the truck body in front of the rear tire and the other prong hit it behind the tire. Both of these areas were damaged and there was a crease in the truck body. [ 10 ] He said he went to find Mr. Jariwala or someone else that could help him. Eventually he located Mr. Jariwala and asked to see the store manager. The manager had already left for the day so Mr. Jariwala took the Plaintiff to see Jeff Rains, the assistant store manager. [ 11 ] Mr. Jariwala gave a different story as to what happened once he told the Plaintiff to follow him through the warehouse.

According to Mr. Jariwala, they normally use a forklift to load insulation onto a customer’s truck, however in this case he did not get on a forklift. Instead, he said that he began walking through the warehouse while the Plaintiff followed him in his truck. Approximately fifteen feet before the curve in the driving lane the Plaintiff’s truck got close to him or may have even passed him. He thought that the Plaintiff was traveling at 10 to 15 kmph, a speed too fast for the warehouse. [ 12 ] He picked up his pace and got ahead of the Plaintiff’s truck and got to the curve in the driving lane before the Plaintiff.

It was their usual procedure as yardmen to stop at this curve and guide customers through this area. According to Mr. Jariwala, the blue lumber carts were way before the turn on the right side of the driving lane. This was the normal place for the carts to be stored. Mr. Jariwala said that he was slightly around the corner of the curve and as he went to turn around, he heard the sound of something hitting something. He did not see the accident occur but as he walked back to the Plaintiff’s truck, he saw a lumber cart touching the right hand side of the Plaintiff’s truck around the back wheel area.

He also noticed a scratch on the back rear box area of the truck.

[ 13 ] Mr. Jariwala said that the Plaintiff was kind of angry and he said “I haven’t hit this cart since so many years.” He found the Plaintiff to be aggressive and asking to see the manager on duty. He took the Plaintiff in to the store to see Mr. Rains, the store manager that was there at the time. He left the Plaintiff with Mr. Rains. The next day he prepared an incident report and gave it to his manager. [ 14 ] For reasons which will become apparent later in this judgment, I accept the testimony of the Plaintiff as to what happened in the warehouse and I do not believe the testimony of Mr.

Jariwala. [ 15 ] The evidence of the witnesses is consistent that Mr. Rains met the Plaintiff and Mr. Jariwala at the order desk. Mr. Rains went out to the warehouse with the Plaintiff to see what had occurred. After viewing the accident scene and looking at the damage to the Plaintiff’s truck, Mr. Rains told the Plaintiff that he would handle the problem and get back to him. Then with Mr. Rains’ assistance, the Plaintiff backed up his truck and freed himself from the cart. Another yardman came out and took the Plaintiff through the main warehouse and into the building where the insulation was stored.

The Plaintiff’s truck was loaded with the insulation he had purchased. Unfortunately he could not get all of it into his truck and he made arrangements to come back the next day and get the rest. [ 16 ] On November 19 th , Mr. Rains called the Plaintiff and asked him to go to an SGI Claims Centre and have the damage on his truck appraised. On November 27 th , the Plaintiff had his vehicle damage appraised and was advised that the estimate to fix the damage was $1,215.75. He passed this information on to Mr.

Rains. [ 17 ] On December 2 nd , the Plaintiff was contacted by the Defendant’s insurance company and advised that they would not be paying for the damage to his truck because the accident was his fault. In their view he was driving too fast in the warehouse and was not keeping a proper lookout. [ 18 ] In January 2013, the Plaintiff had the damage to his truck repaired at Cutting Edge Collision Ltd. The total cost to repair the damage was $1,095.22.

He paid this out of his own pocket. [ 19 ] On April 25, 2013, the Plaintiff sent a demand letter to the Defendant company requesting that they reimburse him the cost of repairing the damage to his truck. On May 7 th , the Defendant responded and advised that they forwarded the demand letter to their insurer. On September 6 th , the Plaintiff started an action in the Provincial Court of Saskatchewan, Civil Division, for recovery of the cost to repair the damage to his truck. ISSUES (

a) Was the Defendant liable for the damage to the Plaintiff’s truck? (

b) Was there a duty on the Plaintiff to mitigate his damages? ANALYSIS (

a) Was the Defendant liable for the damage to the Plaintiff ’s truck? [ 20 ] Defendant’s counsel suggests that this case is governed by the principles of the law of occupiers’ liability. With this, I agree. Occupiers’ liability is concerned with the tort responsibility of those who control land to those and their property who enter onto their land. (See Allen M. Linden and Bruce Feldthusen, Canadian Tort Law , 8 th ed. (Markham: LexisNexis, 2006) at page 711; Lewis N. Klar, Allen M. Linden, Earl A. Cherniak and Peter W.

Kryworuk, Remedies in Tort , loose-leaf (2007 - Rel 7) vol 3 (Toronto: Carswell, 1987) at pages 18-21 and 18-104). In this case, the Plaintiff, Mr. Nelson, entered the building supply store run by the Defendant company, purchased insulation and then drove his truck into the Defendant’s warehouse to pick up the insulation he had purchased. [ 21 ] There is no statute in Saskatchewan governing occupiers’ liability and as such, the common law applies.

For the Plaintiff to be successful in an action based on occupiers’ liability, they must establish that (1) the Defendant was an occupier of the premises, (2) the Defendant breached a duty of care owed to the Plaintiff, (3) the Defendant’s breach caused the Plaintiff’s injury, and (4) the Plaintiff suffered damage. See Klar et al , Remedies in Tort, supra , at page 18-24. Occupier of the Premises

Occupier of the Premises [22] The status of occupier is not dependant on ownership of the premises but rather is based on control over the premises. Anoccupier is a person or entity who has immediate supervision and control of premises and the power to admit and exclude the entry ofothers. See Linden et al, Canadian Tort Law, supra, at page 712. [23] Here, the Defendant, J.H. Enterprises

(1969) Limited, ran a building supply centre called J & H Builders Warehouse. Thisbusiness included a retail store and warehouses on Avenue C North in Saskatoon. As the company running the business, not only didthey have supervision and control of their store and their warehouses, but they had the ability to admit and exclude customers. On theevidence, I am satisfied that the Defendant company was an occupier of the premises. Breach of Duty of Care [24] The duty of care owed to an entrant by an occupier depends upon the status of the entrant.

There are four categories ofentrants to land: contractual entrants, invitees, licensees and trespassers. A contractual entrant is someone who enters the premises inpursuance of a contract with the occupier and is owed the highest duty of care. An invitee enters the premises on business of interest toboth himself and the occupier and is owed a lesser degree of care. A licensee is a visitor to the premises who enters the occupier’s landwith permission but who is not there for any business purpose. He is owed even less care.

And finally, a trespasser is someone whoenters the premises without the permission of the occupier and understandably, is owed scarcely any degree of care. See Klar et al,Remedies in Tort, supra, at page 18-34.01; Linden et al, Canadian Tort Law, supra, at pages 713 to 724. [25] In the present case, the Plaintiff falls into the category of an invitee. He went to the Defendant’s place of business to purchaseinsulation. The common interest between them was economic.

He bought and paid for insulation and the Defendant derived aneconomic advantage from that. [26] The duty that an occupier owes to an invitee has not changed since it was set forth in Indermaur v. Dames (1866), LR 1 CP274; aff’d LR 2 CP 311 (ExCh).

In that decision at page 288, Willes J. said: “. . . we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shallon his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know . . .” [27] More current case law has suggested that to determine whether the duty of care to an invitee has been breached, one need askthe following questions: (

a) Was there an unusual danger on the premises? (

b) If so, did the Defendant know or have reason to know about it? (

c) If so, did the Defendant act reasonably to prevent damage to the Plaintiff from the unusual danger? and (

d) Did the Plaintiff use reasonable care for his own safety, or did he voluntarily incur a risk? See: Smith v Provincial Motors Ltd. (1962), (NS SC), 32 DLR (2d) 405 (NSSC) at p. 412; Hale v Westfair Foods Ltd.,[1995] SJ No 13 (SaskQB) at paragraph 17; Valliere v Saskatchewan Government Insurance, [2007] SJ No 624 (SaskProvCt) atparagraph 28. [28] The term “unusual danger” is a relative one depending on the kind of premises involved and the class of persons to which theinvitee belongs. It encompasses the circumstances existing at the time and place of the accident. See Rafuse v. T.

Eaton Co. (1958), (NS SC), 11 DLR (2d) 773 (NSSC). A danger is unusual if it “is not usually found in carrying out the task or fulfillingthe function which the invitee has in hand”. It is an objective notion rather than a subjective one. See London Graving Dock Co. Ltd. v.Horton, [1951] AC 737 (HL). It is the perspective of the class which the particular invitee is a member of rather than the actualknowledge and experience of the particular invitee. The Plaintiff’s knowledge is not relevant to the question of whether a danger is anunusual one.

It is only relevant to the question of contributory negligence and voluntary assumption of risk. See Campbell v. RoyalBank, (SCC), [1964] SCR 85 (SCC); Klar et al, Remedies in Tort, supra, at pages 18-42 to 18-43; Linden et al, CanadianTort Law, supra, at pages 720 to 721.

[ 29 ] In this case, I have no hesitation finding that the pallets, customer orders, the blue ladder stairs and the blue lumber carts were located at the turn in the driving lane in the warehouse and that they constituted an unusual danger. Mr. Rains took two pictures of this area where the accident occurred on November 15 th after the Plaintiff left the warehouse. These pictures were entered as an exhibit in this case. They were taken with his cell phone and show the curve in the driving lane from both ends of the curve.

The pallets, the blue ladder stairs and the blue lumber cart are all visible in the pictures. It is clear from the pictures that the end of the ladder stairs and the corner of a lumber cart protrude into the driving lane. They also show that the pallets of materials and customer orders are situated in such a way that the driving lane is narrowed as you enter the turn. The Plaintiff had never been in this warehouse before. He was an ordinary customer and one of many that drove through the warehouse with any size of vehicle on a daily basis to pick up product that they had purchased.

Any of those customers would normally expect that the driving lane through the warehouse would be sufficiently wide and devoid of obstacles so as to allow them to negotiate their vehicles and/or trailers to the area where their products could be picked up. Pallets, products, ladder stairs and lumber carts all have their place in the warehouse but customers would not expect these things to be placed in such a fashion so as to impinge on the driving lane through the warehouse and indeed, the Defendant has an obligation to ensure that these things are clear of the driving lane.

The positioning of the pallets so as to narrow the driving lane at this curve accompanied by the haphazard positioning of the ladder stairs and the lumber cart so that they extended into the driving lane was certainly an unusual danger. [ 30 ] An occupier cannot be held liable to an invitee for an unusual danger unless he knew or ought to have known of its existence. The test is objective, that is, it is not a question of what the occupier actually thought but what the hypothetical reasonable person would have foreseen.

The occupier must keep himself acquainted with the state of his property and he should have knowledge of unusual dangers that could be discovered by the exercise of reasonable care and skill. His duty is not to prevent unusual dangers but rather to use reasonable care to prevent damage to invitees from such dangers. It is a question of fact whether the Defendant knew or ought to have known of the unusual danger and whether reasonable care was taken to prevent the danger or to warn the Plaintiff.

See Klar et al , Remedies in Tort, supra , at page 18-44; Linden et al , Canadian Tort Law, supra , at page 722. [ 31 ] I am also satisfied that the Defendant company knew of the danger posed by this conglomeration of items at this particular part of the roadway through their warehouse or they ought to have known about it. Mr. Postnikoff, the Vice President of Operations for the Defendant, testified that the yardman is supposed to stay with the customer from the time they enter the warehouse until their order is loaded up. Mr.

Jariwala said that as a yardman, his responsibilities were to look after customers who are sent to get product in the warehouse, put product away and look after cleaning up the warehouse. He also testified that their usual procedure at this particular turn where the accident occurred is to guide trucks and vehicles with trailers through the turn. [ 32 ] Mr. Jariwala was a yardman and helped customers in that warehouse every day. He was aware of the difficulties of negotiating this turn as he was supposed to guide customers through this portion of the roadway.

He would have known of the hazard caused by having the lumber cart and the ladder stairs where they were in the exhibited pictures. Even if he did not realize it, he ought to have realized it given that he worked in this warehouse daily. [ 33 ] As to the third question, the evidence satisfies me that the Defendant did not act reasonably to prevent the damage to the Plaintiff from the unusual danger. Mr. Jariwala’s responsibility as a yardman was to be with a customer from the moment they entered the warehouse to pick up their order until they got their order and left.

He was also supposed to guide customers through this particular turn where the accident occurred. Mr. Jariwala testified that he was with the Plaintiff, Mr. Nelson, as he went through the warehouse, but I do not believe his testimony on this point. Mr. Jariwala did not take any pictures of the accident, he did not draw a diagram of the accident and he had trouble remembering some of the details of his dealings with the Plaintiff that day. The day after the accident he wrote out a statement of what happened but he dated it the day of the accident.

His testimony about where the lumber carts were kept also did not accord with the pictures taken by Mr. Rains. All of these things cause me concern as to his recollection of what occurred but what is equally troubling is that Mr. Jariwala’s testimony does not make sense. First he admitted that they use a forklift to load insulation onto a customer’s vehicle but denied getting on a forklift in this particular case. Then he said that he was walking along the side of the driving lane and that fifteen feet before the turn in the driving lane, the Plaintiff caught up to him and passed him.

He thought that the Plaintiff was going too fast in the warehouse and estimated his speed at 10 to 15 kmph/hr but when asked if he told the Plaintiff to slow down, he said he did not. He also admitted that he was only guessing at how fast the Plaintiff was going. He said that once the Plaintiff caught up and past him, he quickened his pace and got ahead of the Plaintiff and started walking through the turn in front of the Plaintiff. But if the Plaintiff was going as fast as Mr. Jariwala said he was going only fifteen feet before the turn, I cannot accept that Mr. Jariwala could have got to the turn ahead of him.

Finally, it was Mr. Jariwala’s job to assist customers in getting through this area of the warehouse. But if I accept his testimony, he was not paying attention to the Plaintiff at this curve in the road. He was already through the curve and did not see the accident. This is contrary to his responsibility. For all these reasons, his evidence as to his interaction with the Plaintiff in the warehouse is suspect and not believable. [ 34 ] I prefer the testimony of the Plaintiff over that of Mr. Jariwala. He was organized and consistent in his testimony. According to him, Mr.

Jariwala met him at the back warehouse door. Mr. Jariwala told him to follow him. Mr. Jariwala got on a forklift and began driving through the warehouse because he needed the forklift to load the Plaintiff’s insulation. By the time the Plaintiff got into his truck, Mr. Jariwala and his forklift were gone. The Plaintiff began driving slowly through the warehouse by himself. Mr. Jariwala did not wait for the Plaintiff at the turn in the driving lane, he did not guide the Plaintiff through this narrow turn and he did not warn the Plaintiff of the pallets, the ladder stairs or the lumber cart.

After the accident the Plaintiff went to find someone to talk to about the accident. He eventually found Mr. Jariwala but Mr. Jariwala did not find him. [ 35 ] Mr. Jariwala’s responsibility was to be with the Plaintiff throughout the time he went through the warehouse and to guide him through the narrow turn and he did not do that. Nobody else was around to assist him to get past the obstacles and through the turn. I was not advised that there were any signs warning of the hazards or the narrowing of the roadway at this turn. The Plaintiff was simply

left to negotiate this on his own. As a result, I am satisfied that the Defendant did nothing to prevent the Plaintiff from getting into this accident. [ 36 ] Left to his own devices, the Plaintiff did recognize that the driving lane narrowed at this turn and that the ladder, the pallets of material and the lumber carts made negotiating this turn more difficult. I accept that he stopped his truck, opened his driver’s door and looked out to make sure that he had room to get past the ladder on his left and the pallets in front of him.

However, he did not get out and walk around to the passenger side of his truck to look at the lumber carts, but simply used his side mirror to see where they were. It appeared to him that he had one foot of clearance between his truck and the last lumber cart so he proceeded slowly. Recognizing the unusual danger in the roadway, I am surprised that the Plaintiff did not get out and walk around to the passenger side of his truck to see where those lumber carts were.

Had he done this, he would have seen that he could not get around the cart because it was sticking out into the roadway and he could have either moved it altogether, pushed it so that it was no longer protruding into the driving lane or taken a wider berth to get around the cart. Thus while he took some care to avoid these obstacles, he bears some fault for the accident as well. Breach Caused the Damage [ 37 ] There is no dispute that as a result of colliding with the lumber cart, the Plaintiff’s truck sustained some damage to the area over and around the rear wheel on the passenger side of the truck.

Given my findings, I am satisfied that both the negligence of the Defendant company together with the fact that the Plaintiff failed to take reasonable care to avoid the accident caused the damage to the Plaintiff’s truck in this case. Damages [ 38 ] The Plaintiff’s truck was damaged to the point that it required some repair. Despite the SGI appraisal, the actual cost to repair the damage to the Plaintiff’s truck was only $1,095.22. This is the amount that the Plaintiff paid to Cutting Edge Collision Ltd. to have the damage repaired.

The evidence satisfies me that the Defendant’s employee ignored their own policies about the yardman assisting customers through their warehouse, that they had nothing warning of the unusual danger at the curve in the roadway and did nothing to ensure that the Plaintiff safely manouvered his way through the warehouse. The evidence also satisfies me that the Plaintiff was contributorily negligent.

He recognized the unusual danger and took some care to ensure that he successfully negotiated around the pallets, customer orders, the ladder stairs and the lumber carts, however he should have got out of his truck and had a look at what was on the passenger side of his vehicle. Had he done so, perhaps this accident could have been avoided. As a result, I apportion fault for this accident at 80% on the part of the Defendant company and 20% on the part of the Plaintiff. (

b) Was there a duty on the Plaintiff to mitigate his damages? [ 39 ] Defendant’s counsel argued that the Plaintiff has an obligation to mitigate his damages and that he did not do so in this case. Based on the evidence, she said that the Plaintiff should have made a claim on his licence plate insurance. Had he done so, all he would be out of pocket is his $100.00 deductible rather than the full cost of the repairs. It was also her view that the Plaintiff bore the burden of proving any mitigation of his loss. [ 40 ] I find no merit in this argument.

A defendant who has to pay damages cannot expect to benefit from the plaintiff’s insurance. This was the ratio of the Saskatchewan Court of Appeal in Dawson v. Sawatzky , [1945] SJ No 70 .

In that case, Gordon J.A. said: [ 8 ] Commenting on this case the learned author [Barron] of Canadian Law of Motor Vehicles says in his supplement at p. 140 as follows: “ A defendant who is a wrong-doer and who has to pay in damages as the result of his negligent act, cannot be allowed any benefit of a provision in an agreement, made ex gratia by a third party to the injured party or, in case of his death to his representatives. ” [9] To the same effect is the statement contained in Mayne on Damages , 10th ed., at pp. 124-5: “ Matter completely collateral, and merely res inter alios acta , cannot be used in mitigation of damages.

Hence where the defendant was sued for injuring the plaintiff ’ s ship, or the plaintiff himself by negligence, he could not obtain a reduction of damages on the ground that the plaintiff had recovered from the insurers. ” [ 41 ] Thus, the Defendant in the present case, having been found at fault for a portion of the Plaintiff’s damages, cannot suggest that the Plaintiff must mitigate his damages by claiming against his licence plate insurance. [ 42 ] Even if I am wrong on this point, the Defendant’s position on mitigation is still unsustainable.

The law of mitigation is clear that the onus is on the defendant to prove that the plaintiff failed to meet their duty to mitigate. In order to be successful, the defendant must establish the steps the plaintiff might have pursued to avert the loss, the reasonableness of pursuing those steps and the extent to

which the loss would thereby have been averted had those steps been taken. See Branco v. Epshtein , [2006] OJ No 2391 (OntSCJ) . [ 43 ] Here, the Plaintiff did have licence plate insurance with a $100.00 deductible. However, he did not make a claim on this insurance because had he done so, he would have lost the benefit of his annual discount for being accident free. According to the Plaintiff, not only would his annual registration fee have gone up, but it would have taken him six years of accident free driving to get it back to where it was before such a claim.

Moreover, the Defendant’s argument ignores the fact that had the Plaintiff’s insurer paid for the damage, they would have had a subrogated claim as against the Defendant. Thus, I am not satisfied in this case that it was reasonable for the Plaintiff to access his plate insurance. CONCLUSION [ 44 ] Having determined that the Defendant was 80% at fault for the damages to the Plaintiff’s truck, the Plaintiff will have judgment against the Defendant for $876.18. [ 45 ] In the Plaintiff’s Statement of Claim, he also claimed interest and costs.

However at the end of his testimony, the Plaintiff said that he was not asking for interest. Given his position, I decline to grant interest in this case however the Plaintiff will be entitled to $20.00 for the cost of filing his Summons. ________________________ D.E. Labach, J