VH v. HMTQ Date:, 2014 BCPC 114

Citation: VH v. HMTQ Date: 20140516 2014 BCPC 0114 File No: C11463 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: VH CLAIMANT AND: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA DEFENDANT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE JANZEN Counsel for the Claimant: N. Ganapathi Counsel for the Defendant: T.J. Quirk Place of Hearing: Port Coquitlam , B.C. Date of Hearing: May 16, 2014 Date of Judgment: May 16, 2014

[ 1 ] THE COURT: The claimant, VH, brings a claim for damages for personal injury against the defendant, Her Majesty the Queen in Right of the Province of British Columbia. [ 2 ] The claimant is an inmate in the North Fraser Correctional Centre who fell from a top bunk on June 11 th , 2010 and sustained injuries to his neck and mid to lower back. [ 3 ] The defendant is responsible for all aspects of the Centre. [ 4 ] Both parties were represented by legal counsel. [ 5 ] Although the claimant initially alleged breach of a fiduciary duty and negligence on the part of the Centre's medical staff, by the conclusion of the trial the claimant had limited his claim to an action in negligence based on the unsafe design of the Centre's bunk beds. [ 6 ] The claimant was born in 1963.

Since the age of 14, he has spent much of his time in custody. He has a pre-existing back disability because of an accident when he was ten years old. He also injured his neck and back when the bicycle he was riding was struck by a car in 2007. He suffered an ankle injury in 2005 that is unrelated to this claim. [ 7 ] In March 2010, the claimant was booked into the Centre and assigned to a top bunk in a cell in the defendant's facility.

While he claimed to have advised staff at the Centre of the ankle injury and his need for a lower bunk as a result, Centre records show no such request being made to any of the health care professionals who are responsible for considering such a request, although he underwent an extensive medical assessment upon admission.

The only reference in the Centre's records to his desire for a bottom bunk is a note made by a Corrections Officer on March 24 th , 2010 that "he claimed he had medical support for a bottom bunk on a bottom tier". [ 8 ] The claimant has significant institutional experience with making such requests but did not take any steps between March and June 2010 to follow through on a request for a top bunk.

In any event, the fall occurred when he was sleeping and not using his ankle to get in or out of the top bunk. [ 9 ] On June 11 th , 2010, at approximately 4:00 a.m., the claimant, while sleeping, fell out of the top bunk onto the floor, a distance of approximately six feet. [ 10 ] A nurse employed by the defendant attended him shortly after the incident. She assessed him and found him to be reasonably alert, suggesting that he had not suffered a head injury. She prescribed pain medication. The claimant slept on the floor for the rest of the night and was checked by another nurse at approximately 7:24 a.m.

He was seen by one of the defendant's physicians minutes later at 7:55 a.m. and prescribed T3's, that is, Tylenol with codeine, and sent immediately to Eagle Ridge Hospital Emergency Department for evaluation and treatment. [ 11 ] The claimant testified that since the incident he has continued to suffer back pain as a result of the injury he sustained that day. [ 12 ] The claimant also testified that he had been an inmate in Correctional facilities for approximately 30 years and that several of the other facilities in which he had been incarcerated had guard rails on the top bunks.

He admitted that this incident was the first time he had fallen out of a top bunk at any incarceration facility. [ 13 ] The claimant bases his claim on the fact that the top bunk did not have a proper guardrail to ensure that he did not fall out of bed. Additionally, the mattress was made of plastic material that was slippery and less secure than a fabric-covered alternative. [ 14 ] The nurse who attended the claimant at 4:00 a.m. has been employed at the Centre since 2009. She testified that she found the claimant on the floor. He was alert and orientated and able to move his limbs.

His head and neck were mobile. He complained of mid to lower back pain. He did not complain of neck pain. He was lying on his left hip with his right leg bent. He was able to move on his own to a fully prone position. He sat up to take medication. [ 15 ] She indicated that she only knew of one other inmate who had fallen out of the top bunk since she had been employed at the Centre. [ 16 ] The second nurse who attended the claimant at 7:24 a.m. also testified at the trial. She checked the claimant's vital signs and found nothing of concern.

The claimant was complaining of pain and she spoke to the physician on duty immediately. [ 17 ] Dr. Boone attended the claimant on June 11 th . He testified that he examined the claimant to rule out neurological injury. The claimant complained of severe pain and so he prescribed Motrin and Tylenol 3. He normally does not prescribe codeine medication. He sent him to the hospital for further assessment and treatment. [ 18 ] He has worked at the Centre since 2008 and had never dealt with or heard of anyone being injured by falling out of a bunk while sleeping. [ 19 ] Dr.

Schlagentweit, a physician who has worked for the Corrections Branch since 1986 and at the Centre since 2002 testified. On March 25 th , 2012, he took a history and performed a physical examination on the claimant. [ 20 ] He saw the claimant on several occasions. The claimant never requested a lower bunk. He has never attended any other inmate who had fallen out of a bunk while asleep. [ 21 ] Elliott Smith testified that he had been employed as a Deputy Warden at the Centre since 2008. He has worked for the

defendant since 1991. He testified that he was aware of several facilities that have top bunks without guardrails including FraserRegional, Vancouver Pre-trial that closed in 2004-2005, and Kamloops. [22] He testified that violent acts towards others and self-harm were significant safety concerns, particularly in the male facilities. Many cells contain two inmates and require bunk beds. Assignments were made based on prisoner compatibility. Bottom bunk medicalaccommodations required the assessment and approval of a physician. [23] Guardrails create safety considerations in two respects in the prison environment.

The rail can become a ligature point and self-harm is a significant risk in correctional facilities. A short, solid wall does not allow Corrections Officers to observe the prisoner or whathe might be hiding behind the wall. While the top of the mattress is flush with the top of the box in which it sits, it compresses under theweight of the occupant. The side of the box is about three inches deep. [24] He also testified that prisoners could request to move a mattress to the floor and that request is likely to be accommodated. [25] He confirmed that he knew of two facilities that had guardrails.

Alouette, a facility for female prisoners, has guard walls madeof Plexiglas. In a male facility, the risk of the Plexiglas being broken and used as a weapon against self or others was too great. AtSurrey Pre-trial, the bunk beds run along the side wall, not across the rear of the cell. As a result, it is easier to see into the bunks.

Frequent observation checks are required. [26] Many documents were entered into evidence by consent, including the defendant's records, hospital records, and a number ofwebsites describing standards for bunk bed safety. [27] Hospital records indicate that the claimant was complaining of neck and lower back pain on June 11th, 2010. X-rays taken ofhis lumbar spine revealed no broken bones, ligament damage, or other signs of injury. [28] Centre records indicate that the claimant complained occasionally of back pain between the time he was admitted in March until June 11th, 2010.

As of the end of July 2010, Tylenol 3 continued to be prescribed for him for pain. As of January 2011, he continued tocomplain of neck and back pain and he attended for physiotherapy sessions. By early 2012, he was primarily complaining of neck pain. [29] In order to establish a claim in negligence, the claimant must establish on a balance of probabilities that the defendant owed hima duty of care, that the defendant breached its duty of care, and that the claimant suffered injury as a result. [30] The defendant admits that it owed the claimant a duty of care.

It argues that the claimant must prove the appropriate standardof care through the tendering of expert evidence. Relying on an oral judgment of Madam Justice Fisher in Lee v. Her Majesty in Right of the Province, dated February 9th, 2005, where there was consideration of a similar claim.

In that case, she wrote: The issue of whether or not there should be rails may require some kind of expert evidence. [31] The defendant also argued in the alternative that if expert evidence was not required, the claimant had also failed to establishthat the defendant had breached the duty of care that it owed to the claimant. [32] The claimant argued that whether the defendant has met the standard of care can be adduced by a lay person applying commonsense. [33] He also relied on a number of internet sites describing safety standards, usually related to bunk beds for children.

He providedno evidence of safety standards that are applicable in the Province of British Columbia; nor did he provide any expert evidencerespecting the use of guardrails in the very specialized environment of a prison. [34] The claimant's case may have been assisted by expert evidence - or not. However, I have decided not to dismiss his claimsimply because he failed to provide it. Instead, I am deciding the case on the basis of the evidence before me. [35] A similar case from the B.C. Court of Appeal that discusses negligence in the context of jailer and prisoner is Funk v.

Clapp, (B.C.C.A.) where the Court wrote: [7] The relationship of jailer and prisoner is such that carelessness on the part of the former may cause damage to the latter. Itfollows that there is a duty to be careful: see Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 W.L.R. 1024, [1977]2 All E.R. 492 (H.L.). [8] Mr.

Funk was entitled to have his jailers exercise reasonable care to protect him from foreseeable risks. [36] This case turns not on whether a duty exists but whether it was breached. [37] The claimant was entitled to have his jailers exercise reasonable care to protect him from foreseeable risks. A prison is a veryspecialized environment with many competing considerations that must be taken into account in deciding on the design of prisoners'bunks. [38] Mr.

Smith's evidence established that while guardrails or walls would prevent prisoners from falling out of a top bunk ashappened in this case, a guardrail would also provide a potential ligature point.

A guard wall would obscure the guard's views into thebunk; and a transparent Plexiglas wall could be broken and used as a weapon. [39] The prison environment is one where both self-harm, and assaults on others are foreseeable risks, and the prison must takereasonable care to protect prisoners and staff from such risks. [40] In contrast, the evidence of all witnesses was that falls from an upper bunk bed rarely occur and hence are not foreseeable. The

claimant had never fallen from a bunk until this incident although he had been in similar beds in this and other facilities, some of which did not have guardrails or walls, over a period of 30 years [ 41 ] In providing the bunk bed with a mattress that compresses and the option of moving the mattress to the floor, the defendant has also taken reasonable care to protect prisoners from falls in the context of a prison environment where self-harm and assaults are more compelling real and present risks that must be addressed. [ 42 ] Not every accident is the legal responsibility of another party and this is such a case.

The claim is dismissed. [ 43 ] MR. QUIRK: Thank you, Your Honour. [ 44 ] THE COURT: Thank you. [ 45 ] MR. QUIRK: I do have a brief submission on Rule 20(2) costs in relation to travel expenses and filing fees. I have provided my friend with a copy of those numbers. [ 46 ] THE COURT: Okay. How were you going to collect on your judgment even if you got it, sir? [ 47 ] MR. QUIRK: I'm not certain at all that collection would be possible. My instructions are to seek an order for these costs that I have detailed and I will pass (indiscernible). [ 48 ] THE COURT: Okay, how long do you think you will be? [ 49 ] MR.

QUIRK: That's basically the entire submission. These costs were incurred and they are reasonable costs in the circumstances. [ 50 ] THE COURT: Okay. So these are the costs that were incurred. [ 51 ] MR. QUIRK : Yes. Now, I acknowledge they are not in an affidavit format, but those are the costs that were pulled from our electronic document system. And if an affidavit is required and if my friend requires one, I could certainly have one prepared. [ 52 ] THE COURT: Okay. I just have a question about the travel. What is it comprised of? [ 53 ] MR.

QUIRK: The first travel is a settlement conference in July 2012 that involved a trip from Victoria to Vancouver of a previous articled student and a hotel stay on the night of the settlement conference, the travel for the trial involving -- [ 54 ] THE COURT: What time was the settlement conference? [ 55 ] MR. QUIRK: I don't have that on hand but I believe it will be in the file though. Either 9:30 a.m. or 2:00 p.m. I believe it was at 9:30 a.m. at that time. And then for trial – [ 56 ] THE COURT: Well, there are settlement conferences all through the day.

Do you have lawyers who could attend from the Vancouver office instead of Victoria? [ 57 ] MR. QUIRK: Not usually for these types of things because the Small Claims program is run by the articled students and the articled students are primarily based out of Victoria. [ 58 ] THE COURT: Do you have any in Vancouver? [ 59 ] MR.

QUIRK: On occasion, depending on -– some students do rotate through our offices in Vancouver at times and sometimes including –- this year there was an articled student who was based out of Vancouver office however the case load is such that if they were assigned all of the Vancouver based -– [ 60 ] THE COURT: There would be too many. That is fair enough. Okay. [ 61 ] MR.

QUIRK: In regards to the trial, the first indication for $962.38 that was my travel over here and staying at the Poco Inn & Suites and for the continuation the same. [ 62 ] THE COURT: And that was the night before? [ 63 ] MR QUIRK: For the trial it was the night before. [ 64 ] THE COURT: I think the first day -– how many days was this trial? [ 65 ] MR. QUIRK: Three full days at trial. [ 66 ] THE COURT: Right. [ 67 ] MR.

QUIRK: In relation to the $962.00 that was a flight here and back as well as three nights in the hotel, and the continuation was most of a fourth day. [ 68 ] THE COURT: And that was travel again, but it was not an overnight stay? [ 69 ] MR. QUIRK: I believe there it was in fact an overnight stay with that one as well. I believe we started at 9:00 a.m. on that day and for me to travel here from Victoria it is generally not possible by that time and so I came over the night before. I believe on that

occasion that we -- instead of flying I rented a vehicle because less expensive. If it would have been a flight it would probably be over $400.00. [ 70 ] THE COURT: And so you took the ferry you mean. [ 71 ] MR. QUIRK: Yes. [ 72 ] THE COURT: Yes. Okay. Mr. Ganapathi? [ 73 ] MR. GANAPATHI: Thank you, Your Honour .

My only submission is that –- one that the court has already noted, the (indiscernible) employer such as the Crown certainly has the power to assign articling students from the local area rather than bringing them all the way from the Island and I submit that that a wasteful expense that need not or should not be imposed upon my client. And in any event, as the court also observed, there is very little prospect of collecting this money from him. He has spent most of his life in jail and will probably continue that pattern. Other than the -– the travel costs, which I object to, I see no issue with the rest of it.

Thank you. [ 74 ] THE COURT: Okay. Thank you. I have reviewed this and it is my view that the Small Claims Court does not require legal counsel and so I am not going to allow the costs of legal counsel's travel. It is my understanding this was the legal counsel's travel, not witness travel, but I will allow the claim for costs for the $89.00 for the various filing fees. [ 75 ] MR. QUIRK: Thank you, Your Honour. [ 76 ] THE COURT: Thank you. [ 77 ] MR. QUIRK: Would it be possible to get a copy of your written reasons? Will they be in the file? [ 78 ] THE COURT: I have not really issued this as a written decision.

You could certainly order a transcript of the decision. [ 79 ] MR. QUIRK: Thank you. [ 80 ] THE COURT: Okay. Thank you. (ORAL REASONS FOR JUDGMENT CONCLUDED)