Take the Long Way Home – Avoiding Damage Claims for Short-Cuts
“Short cuts make long delays.”
― J.R.R. Tolkien, The Fellowship of the Ring
Tolkien probably didn’t have civil litigation in mind when he penned this, but his proverb aptly fits the situation facing occupiers of premises sued by persons injured in the course of taking a short-cut through the premises. There is a surprisingly high volume of such litigation. This paper briefly summarizes some example cases and will touch on strategies to avoid liability or minimize the potential liability by implementing good risk management.
British Columbia’s Occupiers Liability Act1 places a positive obligation on an occupier to protect persons on the premises from conditions – both known and which ought to be known to the occupier – that in all of the circumstances of the case pose an objectively unreasonable risk of harm.2 However, there is no duty on an occupier to warn an adult person who is not suffering any disability of the ordinary risks arising out of the common situations of everyday life.3 Thus, the test is one of reasonableness and not perfection.4 Further, the standard of reasonable care applies to all the types of hazards on an occupier’s premises, although what constitutes reasonable care will depend on the circumstances of each case.5 Local custom is one such circumstance and it can inform the Court’s assessment of what is reasonable in any given set of circumstances.6
Defences to Liability
When a person is injured on the occupier’s premises, the occupier can raise certain defences in order to avoid or minimize liability. These defences may operate to defeat the plaintiff’s claim.
Volenti non fit injuria
The defence of volenti non fit injuria, or that the plaintiff voluntarily assumed the risk of entering the premises which resulted in physical injury or property damage, is commonly pleaded as a defence to occupiers’ liability claims, both in common-law and in statute. Specifically, the British Columbia Act states that an occupier has no duty of care to a person in respect of risks willingly assumed by that person.7 In Waldick v. Malcolm,8 the Supreme Court of Canada held that for the defence of volenti non fit injuria to succeed, the defendant must show that the plaintiff assumed both the physical and legal risk involved in the activity before this defence will apply. Thus, to rely on it, the defendant must show that the plaintiff agreed to give up any cause of action and willingly accepted a risk that was fully understood, including the knowledge of the risk of injury. The Court also affirmed an earlier Supreme Court of Canada decision which held that “common sense dictates that only rarely will a plaintiff generally consent to accept the risks of the defendant’s negligence”.9 Consequently, establishing that the plaintiff agreed to abandon his or her right to sue the defendant in negligence is very difficult.
Liability in occupier cases is often apportioned between the occupier and the plaintiff to reflect the contributory negligence of the plaintiff. In British Columbia, the Negligence Act allows blame to be apportioned on a percentage basis.10 Thus, damages are reduced to the extent to which the plaintiff is found to have contributed to the accident.11 The law imposes a duty on the plaintiff to look out for his or her own safety. Ignoring warning signs on the premises may be relevant to an issue of contributory negligence of the plaintiff. Therefore, when an injured plaintiff’s own conduct contributed to the accident, the injured party is found contributorily negligent.
There are scores of judgments across Canada dealing with the liability of an occupier for injuries sustained by people taking short-cuts across premises. Many of these have resulted in outright dismissals and there is a substantial body of jurisprudence where fault has been apportioned between the parties. The author has found surprisingly few short-cut cases where fault was held against the occupier alone.
What follows is a sampling of decided cases.
The leading case on the duty of care imposed on occupiers is the decision of the Supreme Court of Canada in Waldick,12 in which the court was considering the provisions of the Ontario Occupiers’ Liability Act.13 Those provisions are materially the same as the provisions of the British Columbia Act. In Waldick, the plaintiff was seriously injured when he fell on the icy parking area of the defendant’s property. The plaintiff was aware that the laneway was slippery and acknowledged that its condition could be seen without difficulty. The issue was whether the defendant failed to meet the statutory duty of care imposed by the Ontario Act and whether the plaintiff had willingly assumed the risks of the injury. The Court did not accept the defence of volenti non fit injuria, because the plaintiff had not assumed both the physical and legal risk involved. Further, the Court stated that the defendant, notwithstanding the alleged local custom, breached the Ontario Act. The Court stated that the existence of customary practices which are unreasonable in themselves, or which are not acceptable to the courts, do not oust the duty of care owed by the occupiers. Therefore, only in the rarest and most patently obvious of cases will the Courts take judicial notice of a custom.
Occupier Not Liable
In Dandell v. Thompson Rivers University,14 the student plaintiff slipped and fell while taking a short-cut down an icy pathway worn into a grassy snow-covered hill, rather than walking on a well-maintained side-walk. The university was aware that students used the short-cut but it did nothing to prevent students from using it. Following the accident, the university erected sawhorses and other measures to prevent the students from using this short-cut, without much success. The trial judge dismissed the plaintiff’s claim against the university, finding that the university took reasonable care to make the campus reasonably safe, and that the plaintiff willingly accepted the risk of slipping and falling by taking a well-used short-cut rather than walking on the well-maintained sidewalk.
The Court of Appeal affirmed the trial judge’s decision and found that the university was not required to eliminate the risk of injury given a well-maintained alternate route was available to the plaintiff.
In Choromanski v. Malaspina University College,15 the plaintiff slipped down a grassy slope and landed on the sidewalk. One of the witnesses, who helped the plaintiff after the fall, testified that the grassy hillside was used as a short-cut and that the grass was slippery as a result of the recent rainfall. The Court dismissed the case and held that this was not a case in which, due to inadequate lightning, the plaintiff was unable to see the sidewalk and inadvertently wandered off it. Therefore, the defendant was not required to take steps to prevent someone in the position of the plaintiff from being exposed to the common situations of everyday life, which include the chance of falling on a wet, grassy slope. Thus, any such adult person without being warned knows and accepts the risks of falling on a steep wet grassy slope or a path.
In Robson v. Spencer,16 the plaintiff slipped and fell on a portion of compacted snow on the defendant’s lawn. The Court, in dismissing the action, stated that the defendant had discharged his duty by adequately maintaining the driveway and that the plaintiff had proceeded across the defendant’s property by using a short-cut rather than the driveway and walkway. The Court stated that it would be unreasonable to expect an occupier, especially in northern British Columbia, to anticipate non-conventional access or routes of travel onto their property and ensure safe access for all of those potential alternative routes. Finally, the Court concluded that the plaintiff was familiar with the winter circumstances in northern British Columbia and the associated risks of visiting the defendant’s residence during the winter time. Thus, that knowledge, coupled with his own observations of the compacted area and the footwear he was wearing, meant the plaintiff was the author of his own misfortunate since he knew the risks of traversing the compacted snow and voluntarily assumed the risk.
In Wickham v. Cineplex Inc.,17 the plaintiff stepped on uneven decorative stones and fell while crossing the raised median in the rain when returning to the parking lot. In dismissing the action the Court held that the defendant property manager, knowing that people crossed the median to get to vehicles, had a duty to make it safe. However, the occupier had discharged that duty through a gravel path that was properly maintained and provided a means of access for the plaintiff to and from her car. In addition, the Court found that the absence of prior complaints or accidents on the median provided some evidence of the absence of negligence on the part of the defendant. Further, the plaintiff chose to cross the median over the stones and returned the same. Thus, the risk of walking on uneven, wet stones was clear to the plaintiff, and her failure to use reasonable care in light of an obvious risk of walking over wet uneven stones was the cause of her injury.
In Forsyth v. Pender Harbour Golf Club Society,18 the plaintiff while playing golf hit her ball off the golf-course and fell when she went to hit the ball by walking down a steep and slippery slope with her non-motorised golf cart, rather than the paved cart route. The Court in dismissing this action held that the defendant occupier did not breach its duty of care to the plaintiff as there was a well-maintained alternate path available for use. Further, the plaintiff understood the obvious risks and willingly assumed the risks inherent in descending the slope, which was clearly steep and potentially slippery.
Occupier Partially Liable
In Whitney v. University College of the Cariboo,19 the plaintiff was walking on a beaten trail through undeveloped land between a parking lot and a college building when she tripped over basket wire on the trail. The college was aware that people were using the short-cuts across undeveloped areas to nearby buildings but did nothing to regularly inspect and maintain the short-cuts. Further, the college did not post any signs warning people to stay out of the undeveloped areas or advised of any dangers in those areas, including the short-cuts. The Court held that the college did not have a duty to maintain undeveloped areas or to maintain any beaten trails through them; however, it did have a duty to keep the trail clear of the basket wire, a non-natural object introduced into the area by the college. Therefore, the college breached its duty to take reasonable care to ensure that the plaintiff would be reasonably safe in the undeveloped land. The Court also found the plaintiff contributory negligent as she did not look at the ground as she walked long. If she had, she would have seen the presence of the wire. Therefore, she had a duty to take reasonable care for her own safety and observe the ground where she was walking. Liability was apportioned equally between the parties.
In Gaw v. Porter Industries Ltd.,20 the plaintiff stepped into a hole covered by grass on city property which was maintained by the defendant occupier as part of its premises; she was taking a short-cut to access a store. The existence of the post-hole was never reported to the occupier, which apparently inspected the lands in question on a regular basis. The Court held that the defendant occupier owed a duty of care to the plaintiff under the Act. The defendant had not made proper inspections which would have detected the depression in the grass. However, the plaintiff was held 25 percent at fault because she would also have seen the hole if she had exercised due care.
If the occupier can be reasonably expected to be aware of a danger, the occupier has a duty to take reasonable steps to protect people who enter or stay on the premises. Although an injury does not automatically create legal liability, the defendant occupier may successfully defend an action by showing it was not reasonably foreseeable that injury would result to the plaintiff. Therefore, occupiers should be aware of certain factors which can minimize the potential liability should persons on the premises be injured. This is not an exhaustive list but includes the following:
- the inherent or unusual danger, natural or non-natural, at the premises;
- the general exigencies, common situations, of everyday life;
- voluntary assumption of the risk by the person, volenti non fit injuria;
- the plaintiff’s duty to take reasonable care for his or her own safety;
- the reasonable likelihood of a particular incident occurring;
- the causal connection between the incident and the alleged breach of the occupier’s duty;
- visible signage informing the persons entering the premises of potential hazards and risks;
- the plaintiff’s familiarity with the premises;
- the plaintiff’s familiarity with the weather conditions of the region;
- the local customs;
- the development of well-maintained alternate routes or pathways;
- the steps taken to make the premises reasonably safe;
- the absence of complaints or accidents on the premises; and
- the evidence of a care and maintenance program.
1 – R.S.B.C. 1996, c. 337 [Occupiers].
2 – Agar v. Weber, 2014 BCCA 297
3 – Malcolm v. British Columbia Transit,  B.C.J. No. 1945.
4 – Carlson v. Canada Safeway Ltd.  B.C.J. No. 2123.
5 – Charlie v. Canada Safeway Limited, 2011 BCCA 202.
6 – Waldick v. Malcolm,  2 SCR 456 [Waldick].
7 – Occupiers, supra note 1 at s 3(3).
8 – Waldick, supra note 6.
9 – Dube v. Labar,  1 SCR 649, at para 7.
10 – R.S.B.C. 1996, c. 333.
11 – Ibid.
12 – Waldick, supra note 6.
13 – R.S.O. 1980, c. 322.
14 – 2013 BCCA 490.
15 – 2002 BCSC 771.
16 – 2006 BCSC 1240.
17 – 2014 BCSC 850.
18 – 2006 BCSC 1108.
19 – 2004 BCSC 1110.
20 – Unreported 1993.