Herrington v. Kaslo (Village of), 2018 BCSC 1077

N THE SUPREME COURT OF BRITISH COLUMBIA Citation: Herrington v. Kaslo (Village of), 2018 BCSC 1077 Date: 20180629 Docket: S17493 Registry: Nelson Between: Bonita Herrington Plaintiff And Village of Kaslo Defendant Corrected Judgment: The text of the judgment was corrected at paragraph 16 on July 4, 2018. Before: The Honourable Mr. Justice McEwan Reasons for Judgment Counsel for Plaintiff: M. TuckerCounsel for Defendant: J. MitchellPlace and Date of Trial: Nelson, B.C. April 11, 2018Place and Date of Judgment: Nelson, B.C.

June 29, 2018 [1] The plaintiff claims against the Village of Kaslo for damages due to a fall on September 8, 2012 on Water Street. Water Streetis an unimproved part of the downtown area, which functions essentially as an alley. There are barriers to prevent vehicles from goingover the edge of the drop off which is behind the barriers. There is no path on that side of the barriers. To the left of the area where Mrs.Herrington fell there is a cenotaph. A few years ago it was encircled on the side toward the cliff for decorative purposes by a chain. Itdid not extend past the edge of the cenotaph.

Between the cenotaph and the barriers there is a gap. [2] Mrs. Herrington was helping her husband on September 8, 2012, when she fell. She was helping her husband park their motorhome. She was guiding her husband when she stepped off the edge of the embankment. At the time of the fall the area of Water Streetwas two lanes wide. It was unpaved and marked off from the south by a series of concrete barriers to mark out the area where vehiclescould safely park. Between each barrier there is a gap, and it was by means of this gap that Mrs.

Herrington had access to the bank areaand the area she was standing on the bank. [3] The plaintiff was familiar with the area. She and her husband had attended the farmer’s market in 2011 and 2012. The plaintiffnoticed her husband trying to back up the motor home. She told him she would help him and turned her back on the embankment. Shemade hand gestures and stepped to the left and fell down the embankment. [4] Section 3(1) of the Occupiers Liability Act defines the duty of care owed by an occupier as follows: 3

(1) An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person,and the person's property, on the premises, and property on the premises of a person, whether or not that person personally enters on thepremises, will be reasonably safe in using the premises. [5] In Oser v. Nelson (City) (BCSC) the court said at paras. 11 and 12: [11] The plaintiff submits that the defendant's "policy" of having no

schedule of inspections of sidewalks and roads before June 1994is "so irrational and unreasonable as to constitute an improper exercise of government discretion", as that test is enunciated in Brown v. British Columbia (1994) (SCC), 112 D.L.R. (4th) 1 (S.C.C.) at p. 11, per Mr. Justice Cory. That decision establishesthat the person who asserts such an improper exercise of discretion must prove it on a balance of probabilities. Here, the only evidenceoffered is the fact that there were no scheduled inspections. From this, an inference of irrationality or unreasonableness is invited.

But, assubmitted by the City, it is not unreasonable not to inspect if a bona fide policy decision has been made that certain hazards fall below athreshold established due to budgetary or manpower considerations. That is the evidence before me. [12] Without evidence that clearly dangerous situations were being ignored or that the "threshold" was irresponsibly high or arbitrary,

no inference of irrationality or unreasonableness is warranted from the mere fact that there were no scheduled inspections. Thatsubmission is tantamount to an assertion that the City is an insurer respecting any mishap within or upon its public places. That is not thedefendant's legal burden. [Emphasis in original] [6] The circumstances in Oser are similar to the circumstances at bar. [7] The evidence of Rob Lang and Glen Walker disclosed the following facts about Water Street in 2012: (

a) It was an unpaved road; (

b) It was essentially the “alley” for the businesses on Front Street and provided those businesses with loading access; (

c) The north side of Water Street was used for overflow parking, and people typically parked facing the north; (

d) The Village had placed concrete parking barriers (the “Barriers”) on the north side of the street to demarcate the parking area andthe embankment (the “Embankment”) to the north; (

e) Most people who parked on Water Street did so to access Front Street or Kaslo Bay (where the Jazz Festival took place); (

f) People who parked on Water Street typically walked along the road towards Front Street or Kaslo Bay, as there was no path on thenorth side of Water Street; (

g) Neither Rob nor Glen ever saw people walking to the north of the Barriers on the north side of Water Street; (

h) It would be difficult to walk to the north of the Barriers as the ground was uneven and not maintained; (

i) The Subject Area was not well-used; (

j) The Embankment was obvious given the location of the Kootenay Lake and the concrete barriers and post and chain fence near thecenotaph; and (

k) There have been no other reported falls from the Embankment, before or since. [8] The infrastructure that was placed in the area where the plaintiff fell was adequate. It was not necessary to put up fencing forfall protection as it was obvious that the area was hazardous and the area was hardly used. [9] The plaintiff knew the Embankment was there having been to Kaslo many times before the accident. On September 8, 2012she was not looking at her feet or the embankment as she was walking backwards to guide her husband who was parking the RV.

If shehad been looking where she was going she would not have fallen off the Embankment. [10] Based on these facts the fall was solely the result of her inattention that day and the action should be dismissed on this basisLawrence v. Prince Rupert (City) and B.C. Hydro & Power Authority, 2005 BCCA 567 is pertinent. There, Chief Justice Finch observed: [42] In Stapley v.

Gypsum Mines Ltd., [1953] A.C. 663 at 681, Lord Reid said that the question of causation “… must be decided as aproperly instructed and reasonable jury would decide it.” He continued: … The question [of causation] must be determined by applying common sense to the facts of each particular case. One may find that as amatter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened,but that does not mean that the accident must be regarded as having been caused by the faults of all of them.

One must discriminatebetween those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but oneand to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubtwhether any test can be applied generally. … [11] In Ryan v. Victoria (City), (SCC), [1999] 1 S.C.R. 201 at para. 28 Major J. summarized what it means to benegligent as follows: [28] Conduct is negligent if it creates an objectively unreasonable risk of harm.

To avoid liability, a person must exercise the standard ofcare that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonabledepends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden orcost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such ascustom, industry practice, and statutory or regulatory standards. [Emphasis added.] [12] The village set up the standard in reasonable manner.

It is relevant in this regard that: 1) The Embankment was patently obvious to anyone in the area. 2) The plaintiff admitted she knew it was there. 3) There have been no incidents of people falling down the Embankment in all the time that Rob and Glen worked for the Village. 4) The area was not used very often.

[ 13 ] I have considered whether contributory negligence would be applied. [ 14 ]

Section 1 of the Negligence Act , RSBC 1996 c. 333 provides: 1

(1) If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault.

(2) Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability must be apportioned equally.

(3) Nothing in this

section operates to make a person liable for damage or loss to which the person's fault has not contributed. 2 The awarding of damage or loss in every action to which

section 1 applies is governed by the following rules: (

a) the damage or loss, if any, sustained by each person must be ascertained and expressed in dollars; (

b) the degree to which each person was at fault must be ascertained and expressed as a percentage of the total fault; (

c) as between each person who has sustained damage or loss and each other person who is liable to make good the damage or loss, the person sustaining the damage or loss is entitled to recover from that other person the percentage of the damage or loss sustained that corresponds to the degree of fault of that other person; (

d) as between 2 persons each of whom has sustained damage or loss and is entitled to recover a percentage of it from the other, the amounts to which they are respectively entitled must be set off one against the other, and if either person is entitled to a greater amount than the other, the person is entitled to judgment against that other for the excess. [ 15 ] The Village submits that the plaintiff created the larger degree of risk and departed more significantly from the standard than the Village did. In this case the damage was known and direct. The plaintiff walked backward toward the Embankment.

That was the proximate cause of her unfortunate fall. [ 16 ] The action is dismissed with costs to the defendant. “McEwan J.” The Honourable Mr. Justice McEwan