Hall-Thomsen v Drader, 2023 ABKB 599

Court of King’s Bench of Alberta Citation: Hall-Thomsen v Drader, 2023 ABKB 599 Date: 20231023 Docket: 1706 00021 Registry: Lethbridge Between: Robert William Hall-Thomsen Plaintiff - and - Christie Drader and Jeff Ives Defendants _______________________________________________________ Memorandum of Decision of the Honourable Justice D.V. Hartigan _______________________________________________________ [ 1 ] This matter involves injuries sustained by the Plaintiff while assisting the Defendants in moving a barbeque. The Plaintiff contends the injuries arose due to the negligence of the Defendants. The matter proceeded as a

summary trial before me, with the agreement of the Parties. The evidence was a combination of affidavits and the viva voce testimony of the Plaintiff. [ 2 ] As a preliminary matter, Her Majesty the Queen in Right of Alberta was erroneously named as a Plaintiff in this matter. That Plaintiff is removed from these proceedings.

[ 3 ] The issues before me are as follows: (

a) Does the Occupiers’ Liability Act , RSA 2000, c O-4 (the “ Act ” ) apply to these proceedings, insofar as whether the Defendants, or either of them, were negligent in ensuring the premises were reasonably safe for the Plaintiff? (

b) Did the Defendants, or either of them, owe a duty of care to the Plaintiff in the context of the incident? (

c) Did the Defendants, or either of them, breach their duty of care to the Plaintiff? That is, were either or both of the Defendants negligent? [ 4 ] I will address each of these questions in turn. As the facts are relatively straightforward, I will summarize them before answering the above questions. FACTS [ 5 ] On June 20, 2016, the Defendants, Jeff Ives (“Jeff”) and Christie Drader (“Christie”) were moving out of their home on the west side of Lethbridge, Alberta.

The two had previously separated and the house was being sold as a consequence. [ 6 ] The Plaintiff, Robert Hall-Thomsen (“Robert”), had been asked by Jeff to help move some items from the home. Christie asked Robert to help her lift a barbeque into the back of a truck. Robert agreed. [ 7 ] While Christie and Robert attempted to lift the barbeque, it began to fall away from the truck and the steel shelf attached to the side of the barbeque landed on Robert’s right arm. Robert received a very deep and long laceration, approximately 20 cm in length, which went down to the radius bone in his forearm.

He has suffered significant damage as a result of the injuries he sustained. [ 8 ] Robert testified at the trial. For the most part his evidence was consistent with the Agreed Statement of Facts and the evidence in the affidavits. Does the Occupier’s Liability Act apply? [ 9 ] The Plaintiff frames this claim in the context of the duties and remedies under the Occupiers’ Liability Act . The Defendants contend the Act does not apply to the case at hand. [ 10 ]

Section 5 of the Act sets out the duty of care owed to visitors by occupiers of premises as: Duty of care to visitors 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. [ 11 ] The Defendants contend that the Act applies only to the condition and fitness of real property plus those other types of property enumerated in s. 1 (

d) of the Act . In this way, the occurrence involving the barbeque did not have anything to do with the condition or state of the premises. [ 12 ] While the Defendants would have this Court limit the application of the Act to the physical condition or state of the premises, the Act suggests a broader

interpretation. While the Defendants are correct that a barbeque is not included in the definition of premises, the duty of care envisioned by the Act extends beyond the physical or structural safety of those premises. [ 13 ]

Section 6 of the Act states: 6 The common duty of care applies in relation to (

a) the condition of the premises, (

b) activities on the premises, and (

c) the conduct of third parties on the premises. [ 14 ] Therefore, the Act contemplates a duty of care in relation to activities undertaken on the premises, as well as the state of the premises themselves. This

interpretation would appear to be consistent with the wording of s. 5 of the Act , “An occupier of premises owes a duty to every visitor ... to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited[.]” The Act displaces the common law, where an occupier’s liability was largely restricted to static defect or dangers in the physical structure of the premises rather than things being done on the premises ( Dunster v. Abbott , 1953 EWCA Civ J 113-3). [ 15 ] The Plaintiff was at the residence for the purpose of assisting the Defendants in moving items.

He was there at their invitation and with their permission, undertaking tasks for their benefit. The Act therefore applies to the activities of the parties in this incident. Did the Defendants owe a duty of care to the Plaintiff?

[16] Given my finding that the Act applies, the Defendants owed a duty of care to the Plaintiff. The standard of care imposed bythe Act is the same standard as found in the tort of negligence. Furthermore, I find that the possibility of injury to the Plaintiff in havinghim assist in moving items such as a barbeque was reasonably foreseeable. The determinative issue, therefore, is whether theDefendants’ negligence caused or contributed to the barbeque falling during the attempted lift and, consequently, the Plaintiff’s injuries.

Were the Defendants negligent and thereby breached their duty of care to thePlaintiff? [17] The Plaintiff argues that I should draw the conclusion that the barbeque fell, at least in part, due to the negligence of Christie,and to a lesser extent, Jeff. In support of this position, the Plaintiff points to the following alleged negligent behaviours on the part ofChristie and Jeff:

(1) Christie was in some way physically incapable of executing the lift of the barbeque, and her inability to do so contributed to thefall. Further, she was aware that she was likely unable to execute the lift;

(2) Christie and Jeff were aware that persons had previously been injured by the barbeque and failed to advise the Plaintiff of thatdanger. Had he been so warned, he would have approached the task of lifting the barbeque differently; and

(3) Christie and Jeff were aware of potentially dangerous physical properties of the barbeque, namely, its top-heaviness and thesharpness of the trays and failed to advise the Plaintiff of that fact. Again, had the Plaintiff been aware of this fact, he would haveapproached the task differently. [18] There is no direct evidence of what caused the barbeque to tip and fall. The evidence is that Christie and the Plaintiff startedlifting the barbeque, whereupon it almost immediately began to fall forward away from the truck.

The Plaintiff received his injurieswhen the steel shelf attached to the barbeque landed on the Plaintiff’s arm. [19] The Plaintiff must therefore rely upon circumstantial evidence as to the mechanism of the barbeque’s fall.

Traditionally,establishing negligence via circumstantial evidence was governed by the Latin maxim res ipsa loquitur, or “the thing speaks for itself”.Res ipsa loquitur created an inference of negligence when the accident was something that does not happen in ordinary humanexperience without negligence, and the situation and circumstances from which the accident arose were under the sole management andcontrol of the defendant. Absent direct evidence of the cause of the accident, proof of these two factors created a rebuttable inference thatthe defendant’s negligence was the cause of the injury (Philip H.

Osborne, The Law of Torts, Irwin Law 2020). [20] In Fontaine v. British Columbia (Official Administrator), (SCC), [1998] 1 SCR 424, the Supreme Courtreconsidered the utility of res ipsa loquitur. The Court held that triers of fact must simply weigh the circumstantial evidence and anydirect evidence to determine whether the plaintiff had made out a prima facie case of negligence.

If they succeed in so doing, thedefendant can present evidence to negate the inference of negligence. [21] The Plaintiff alleges that Christie was negligent in undertaking the lift of the barbeque when she was both incapable of doingso and knew she was incapable of doing so. The Plaintiff asserts that the Court can draw the inference that it was Christie’s inability tosuccessfully perform the lift that caused the barbeque to tip, injuring him. [22] In his testimony at trial, the Plaintiff stated he asked Christie if they should wait for Jeff to help them lift the barbeque.

According to the Plaintiff, Christie said they should continue without Jeff. In cross-examination, it was put to the Plaintiff that he hadadopted Christie’s version of events from her questioning, during which she had made no mention of the Plaintiff’s suggestion regardingwaiting for Jeff. I find nothing turns on this point. Clearly, by attempting the lift of the barbeque, Christie felt she and the Plaintiff werecapable of successfully doing so.

Whether waiting for Jeff was suggested or not, both the Plaintiff and Christie proceeded to lift thebarbeque and both felt they could execute the lift. [23] Again, almost immediately after the barbeque was lifted, it tipped and fell. The Plaintiff asserts that it was due to somenegligent failure on Christie’s part that the lift was unsuccessful. However, there is no evidence that Christie dropped or otherwisemishandled the barbeque causing it to fall. [24] There is no evidence before me that Christie was unable to properly lift the barbeque, let alone that she knew she wasincapable of doing so.

There is evidence that Christie lifted the barbeque by holding its legs and her shoulders underneath the shelf.There is no evidence that this manner of lifting led to the barbeque’s fall, or that such a lift was beyond her capacity. Again, there is nodirect evidence of why the lift failed.

There is no evidence that Christie was in any way negligent in her handling of the barbecue, anymore than there is evidence of the Plaintiff’s negligence. [25] The fact that on a previous occasion Christie and friends had moved the barbeque from the back deck by a combination ofrolling and lifting suggests no inability on her part to perform the lift with the Plaintiff nor knowledge of such an inability. [26] I find that the simple fact of the barbeque falling does not allow me to draw an inference that the fall was prima facie theresult of any negligence on the part of how Christie lifted it, let alone that she was and knew she was incapable of lifting it. [27] Even if one were to look at the evidence through the lens of the traditional res ipsa loquitur approach, it is not possible todraw an inference of negligence.

An object tipping and falling when being lifted by two people is not something that only happens inhuman experience due to negligence. Furthermore, the barbeque was equally within the control of Christie and the Plaintiff. If I amwrong, and the only possible cause for a lifted object to fall is negligence on the part of one or both of the people lifting, there is noevidence such that I can conclude it was Christie’s negligence, rather than that of the Plaintiff, which caused the failure.

The burden ofestablishing on the balance of probabilities that the Defendant Christie was negligent and thereby caused the fall lies with the Plaintiff:he has failed to meet that burden.

[ 28 ] The Plaintiff contends the Defendants were aware of dangers posed by the sharp parts of the barbeque, as they were aware of prior injuries caused by the barbeque. As such, they had a duty to warn the Plaintiff of those dangers. Had the Plaintiff been aware of those prior incidents, he might well have approached lifting the barbeque in a different manner. [ 29 ] The only evidence before the Court of any prior knowledge the Defendants had of anyone being injured by the barbeque is in relation to Jeff’s original assembly of the barbeque.

That evidence is that Jeff may have received a small cut when he was putting the barbeque together. There is no evidence beyond that simple assertion. The nature of the cut is not in evidence, nor is there any evidence about whether the cut was caused by any specific part of the barbeque. [ 30 ] Absent any specific evidence as to the circumstances and mechanism of the cut Jeff received, it is difficult to see what warning a reasonable person would have given the Plaintiff in the context of lifting the barbeque onto a truck.

There is no evidence that, in lifting the barbeque, the Plaintiff was exposed to a danger from the same part of the barbeque that cut Jeff during the assembly process, if indeed the cut was caused by a part of the barbeque. [ 31 ] Furthermore, there is no evidence to support the Plaintiff’s assertion that there were physical characteristics of the barbeque such that the Defendants were required to advise the Plaintiff of its unique qualities.

The Plaintiff alleges the barbeque was both particularly top-heavy, and that the shelf which ultimately caused the injury was so sharp as to require a specific warning from the Defendants. [ 32 ] There is no direct evidence to suggest the barbeque was any more top-heavy than any other standard barbeque. The only indication of top-heaviness is that the barbeque tipped when being lifted.

I find that fact alone insufficient to warrant an inference that the barbeque was uniquely unbalanced, let alone to establish that the Defendants knew of this top-heaviness so as to require warning the Plaintiff. [ 33 ] Similarly, the only evidence of the sharpness of the shelf is the fact that when the barbeque fell, it cut the Plaintiff’s arm. There is no evidence that the shelf was unusually sharp, or sharper than a typical part of a sheet-metal barbeque.

In addition, as with the top-heaviness, there is no evidence from which an inference could be drawn that the Defendants, particularly Christie, knew of this alleged sharpness. CONCLUSION [ 34 ] This case involves a most regrettable set of circumstances. The Plaintiff, being a good friend, assisted his friend and his friend’s former spouse in removing items from the Defendants’ previously shared home. He did so purely as a favour to his friend, without expectation of pay or any other benefit.

While he was helping to lift a barbeque, the barbeque inexplicably tipped and its sharp shelf landed on the Plaintiff’s arm, causing him very serious injuries. [ 35 ] There is no evidence that the barbeque’s fall and the resultant injuries were due to anyone’s negligence, including both the Defendants and the Plaintiff. What occurred can only be described as a true accident for which, on the evidence, no one is legally to blame. [ 36 ] The Plaintiff has failed to establish that his injuries were the result of the Defendants’ negligence.

The claim is dismissed. [ 37 ] As the successful party, the Defendants are entitled to costs pursuant to the appropriate column of

Schedule “C”. Heard on the 19 th day of June, 2023. Dated at Lethbridge, Alberta this 23rd day of October, 2023. D.V. Hartigan J.C.K.B.A. Appearances: Steven G. Osmond of Stringham LLP for the Plaintiff

Richard J. McRae of Allstate/Pembridge Legal Services for the Defendants