Many slip and fall personal injury claims in British Columbia have been successful because the judge determined that the owner of a property had created an unusual danger. However with the introduction of the Occupier liability Act the common law concept as of “unusual danger” began to lose meaning and in Agar v. Weber, 2014 BCCA 297 the BC Court of Appeal has signaled the death kneel for the cherished concept of unusual danger in personal injury law.
This personal injury lawsuit involved a claim under the Occupiers Liability Act and a claim in negligence. The injury occurred while the Claimant was cleaning crabs using a homemade crab shelling device made by the appellant. The parties were neighbours and the device was affixed to the dock of the waterfront property appellant owned. The trial judge found that the device had a concealed sharpness which he defined as an “unusual danger”. The judge went on to find that the unusual danger posed by the device required that a warning of the concealed sharp edge being given to users.
The term “unusual danger” traditionally refers to a hidden or unexpected danger that an occupier of land knows or ought to have known about. However, the standard of care under statute and at common law for negligence is the same: it is to protect others from an objectively unreasonable risk of harm. Whether a risk is reasonable or unreasonable is a question of fact. The central issue for determination by the trial judge was therefore whether the device posed an unreasonable risk of harm.
The term “unusual danger” was therefore severely limited and effectively eliminated in slip and fall cases with the following comments,
[49] In this province, the statutory test under the OLA has superseded the former common law test for occupiers liability. At common law, a finding of “unusual danger” had particular significance. With a finding of an “unusual danger”, the burden of proof is transferred to the defendant to demonstrate that reasonable care had been taken to safeguard the plaintiff from that hazard. Warning of the risk of the “unusual danger” was one of the ways in which a defendant could meet that standard. Proof that a defendant had knowledge or was aware of the risk was not required to establish a breach of the standard of care. Knowledge of the risk only became relevant to a claim by a defendant of contributory negligence or voluntary assumption of risk against the plaintiff. This test became known as the rule in Indermaur v. Dames (1866), LR. 1 C.P. 274, aff’d L.R. 2 C.P. 311 (Ex. Ch.): see Foley v. Imperial Oil Ltd., 2011 BCCA 262 at para. 33.
[50] As I understand the trial judge’s reasons, he did not rely on his finding of an “unusual danger” for the purpose of invoking the rule in Indermaur v. Dames and thereby shift the burden of proof to the Webers. This Court held in Weiss v. Young Men’s Christian Association of Greater Vancouver (1979), 11 B.C.L.R. 112 at 119 (C.A.) that, while it is not helpful and could be potentially misleading to use the language of the former common law test to describe the comprehensive standard of care under in s. 3(1), if the term “unusual danger” is not used for the purpose of invoking the rule in Indemaur v. Dames, the use of the term on its own will not amount to an error of law.
[51] However, the trial judge’s reliance on the language of the common law test for occupiers liability, in particular his finding of an “unusual danger”, may have caused him to limit his analysis of whether the device posed an objectively unreasonable risk of harm. His logic appears to have been as follows: (i) the outboard edge was sharp; (ii) the bevelling on the outboard edge was concealed; therefore (iii) the device was an “unusual danger”. The finding of “unusual danger” then led him to find that the Webers ought to have warned Dr. Agar. Absent a warning, he concluded they were in breach of their duty of care and were liable for Dr. Agar’s injury.
The Court of Appeal concluded the homemade crab cleaning device did not pose an objectively unreasonable risk of harm. The injury claimant was experienced in cleaning crabs but simply lost his balance and fell against the outboard edge, severely cutting his wrist. The appeal was allowed and the personal injury lawsuit was dismissed.
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Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.