Depths of duty-of-care liability
Since 1985, Victoria-based Carfra Lawton law firm has offered insurance defence throughout B.C. and the Yukon, with cases ranging from routine to highly complex. Few have been more heartbreaking than one that began Aug. 24, 2007, when a 10-month-old infant, Cora Boyes, suffered a traumatic shock after putting an electrified extension cord in her mouth, causing severe electrical burns to her face and body.
At the time of the incident, Cora’s mother and father were renting the upstairs suite of a residence in North Vancouver. They had been there for three months. That day, Cora was playing peekaboo around a couch with her aunt. When Cora failed to reappear, her aunt found her non-responsive, and began administering first aid until paramedics arrived. The infant was placed in a medically induced coma and spent three weeks in ICU at Children’s Hospital.
Aron Bookman and Trevor Morley of Carfra Lawton got involved when the previous owner of the house, Sandra Ryckman, found herself in court facing a third-party liability claim started by the current absentee owners of the home who lived in Hong Kong. In court with Ryckman was one of the owners’ sisters, who acted as the property manager. Ryckman owned the house from 1969 to 1992 before selling it to the absentee owners. The property manager oversaw maintenance and rental to tenants.
The case revolved around the duty of care for the safety of those who lived in the house and the safety of a built-in entertainment unit, or cabinet, from which the charged cord protruded. The court’s decision dealt only with liability for Cora’s electrical burns.
The issues raised in this liability case included:
- When was the cabinet created or modified?
- Who owed a duty of care to the infant plaintiff and what was the standard of care?
- Was the standard of care met?
- Did a failure to meet the standard of care result in harm to the infant plaintiff and was the harm foreseeable?
- How is liability to be apportioned?
The cabinet had been installed in the 1980s to accommodate a TV, stereo equipment, record player, VCR and cable box. After the incident, a mechanical engineer disassembled the unit. He found an electrical junction box that was wired directly into the electrical system of the house and two receptacles that were soldered into the cabinet’s wood frame. When asked, Ryckman noted that she and her late spouse were safety conscious and would not knowingly allow an electrical hazard to exist. She said she did not recall ever seeing the extension cord, believing she would have noticed it if it had been there because she often vacuumed the living room.
In closing, Bookman argued on behalf of Ryckman that the plaintiff and other defendants had not proven that the cabinet was constructed with the dangerous cord that injured Cora Boyes. The judge concluded that the electrical supply to the cabinet was likely altered after Ryckman sold the property.
Bookman also argued that even if it had been proven that the cord was installed originally in the cabinet, or that the receptacle hidden under the cabinet was a hazard, a previous owner’s duty of care was limited to a duty to warn of any known hazards or hazards of which she ought to have known. Further, if the hazard should have been discovered upon reasonable inspection by the subsequent owner, the chain of causation was broken and no fault should be assessed against Ryckman as the previous owner. In this way, Ryckman’s case aligned with the infant’s case against the owners and landlord. The court accepted Bookman’s submissions, dismissed the claim against Ryckman and awarded costs.
From the November 2016 edition of InsurancePeople