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OCCUPIERS’ LIABILITY - Particular situations - Construction sites and excavations

Wednesday, July 22, 2020 @ 9:13 AM  

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Appeal by the defendant from the damages award against it and the equal apportionment of liability. Cross-appeal by the plaintiff from the equal apportionment of liability. The respondent sustained catastrophic injuries when he lost his balance and fell off an eight-foot ladder while performing construction work on an 11-foot ceiling of premises leased by the appellant. The respondent was performing the work for his son, who was a part owner of the appellant. Due to his injuries, the respondent was largely unresponsive and required 24-hour care. The trial judge found the appellant owed a duty to ensure the ladder used by the respondent was suitable for the task and to supervise the respondent in carrying out the work. He found the respondent, an experienced contractor, was contributorily negligent for choosing an inappropriate ladder. The trial judge admitted the Minister’s Certificate issued under the Health Care Costs Recovery Act that listed costs of $1,239,420 for the respondent’s care.

HELD: Appeal and cross-appeal dismissed. The trial judge did not err in finding the appellant liable for the respondent’s injuries or in apportioning liability equally. The trial judge properly instructed himself on the standard of care imposed on the appellant and did not impose a standard of perfection. His finding the appellant provided no meaningful supervision of a manifestly unsafe activity supported the conclusion the appellant failed to adhere to the required standard of care under the Occupiers Liability Act. The trial judge did not misapprehend relevant evidence pertaining to the appellant’s supervision of the respondent. He made no palpable and overriding error in his causation analysis. There was an evidentiary basis for inferring the necessary link between the respondent’s fall and the lack of any reasonable degree of supervision. There was no palpable and demonstrable error in the trial judge’s appreciation of the legal principles applied in his apportionment of liability. Section 16 of the Health Care Costs Recovery Act was not ambiguous. The strict construction rule was inapplicable. The Certificate admitted met the substantive requirements of s. 16(1) and 16(2) of the Act. Requiring two separate certificates would be inconsistent with the purpose of the Act in protecting the government’s right to recover from the wrongdoer health-care costs provided to a beneficiary.

Woo (Litigation guardian of) v. Crème De La Crumb Bakeshop & Catering Ltd., [2020] B.C.J. No. 993, British Columbia Court of Appeal, G. Dickson, P. Abrioux and J. DeWitt-Van Oosten JJ.A., June 19, 2020. Digest No. TLD-July202020006