Carfra Lawton LLP | Victoria BC

Homemade Crab Cleaning Device Not an Unusual Danger

In Agar v Weber 2014 BCCA 297 the plaintiff sought damages arising from an injury he sustained to his right wrist while using the defendant’s homemade crab shelling device. The plaintiff’s claim was framed under the Occupiers Liability Act, RSBC 1996, c. 337 (the “OLA”) and in common law negligence. The trial judge inspected the crab cleaning device and found that because no sharp edge was necessary to clean crabs and because the device had a concealed sharp edge it posed an “unusual danger” to a user. Absent a warning of this danger, the defendant was found to have breached the standard of care for an occupier under the OLA and in negligence

The BCCA overturned the trial decision on the basis that the trial judge relied on the language of the common law test for occupiers liability, focusing on whether the device was an “unusual danger” and whether the plaintiff ought to have been warned of that danger, rather than the statutory “reasonableness” test under the OLA which requires an assessment of whether the device, in all of the circumstances of the case, posed an objectively unreasonable risk of harm to the plaintiff. The correct test required the trial judge to consider “whether there was a recognizable risk of injury, the gravity of the risk, the ease or difficulty with which the risk could be avoided, and the burden or cost of eliminating the risk”.

The BCCA ultimately held that the crab cleaning device did not pose an objectively unreasonable risk of harm and that what happened to the plaintiff was “a most unfortunate action”.

Case summary by: Caroline Alexander