Carfra Lawton LLP | Victoria BC

No claim if you can’t prove why you fell

If you don’t know why you fell, then you likely won’t be able to hold anyone else responsible for your injuries. The BC Supreme Court has affirmed this legal principle in two recent cases, Hickey v. The Roman Catholic Archdiocese of Vancouver, 2017 BCSC 1176, and Goddard v. Bayside Property Services Ltd., 2018 BCSC 1498.

In Hickey, the plaintiff fell from a choir loft riser while administering ashes during evening mass. Two witnesses saw the plaintiff fall, but did not see what caused the fall. The plaintiff testified that he did not know what caused him to fall, but suggested some nearby cords may have been involved. In Goddard, the plaintiff was walking down some exterior stairs at his condominium building. He recalled using his left hand to grab the left railing of the stairs, and then found himself at the bottom of the stairs, lying on his back. Each plaintiff sued the owners of the premises on which they fell.

In both cases, defence expert evidence showed there was nothing structurally wrong with the steps in question, and evidence about maintenance of the steps was provided. Liability in both matters was tried summarily on affidavit evidence. The judges in both cases found that the plaintiffs had not established the cause of their falls. The fact that the plaintiffs fell could not, on their own, mean that the owners of the property should be held responsible for the fall, particularly where defence evidence showed that the stairs were generally safe and well-maintained. As the Honourable Mr. Justice Ball states in Goddard, the existence of stairs is not, by itself, an unreasonable risk of harm. It is a risk that people in our society face on a daily basis. A plaintiff needs to be able to point to some act or failure by the defendant which resulted in the plaintiff’s injury. Without such evidence, the court will dismiss the case.

NOTE: The Goddard decision was reversed by the BC Court of Appeal in 2019 (Goddard v. Bayside Property Services Ltd., 2019 BCCA 148). The principle still stands that without evidence of the defendant’s negligence, the court will dismiss the case. However, the Court of Appeal confirmed that circumstantial evidence can be sufficient to prove a claim and in that particular case the trial judge did not appropriately address the circumstantial evidence of defects brought by the plaintiff. The Court of Appeal sent the matter back to the BC Supreme Court for a new trial.

Case summary by Karen Orr