Released December 23, 2015 | Full Decision [CanLII]
This recent decision is a reminder of the affirmative duty that occupiers owe to take reasonable care to ensure that people are safe while attending on their premises.
In this case, the defendant carried on business as the Heart and Crown Irish Pub in Ottawa. The plaintiff attended the pub and fell. As a result of the fall, the plaintiff commenced an action for damages for personal injuries. At trial, among other things, liability and contributory negligence were at issue.
There was a single step where the plaintiff fell, which measured about 14.3 centimetres in height. The plaintiff had taken an “air step” from the upper level of the patio of the pub to the lower level. As a result, she suffered a fracture of the navicular bone on her right foot. The plaintiff’s expert, a mechanical engineer, expressed that single steps are much more difficult to see. The court accepted the expert’s opinion and found that the single step posed a foreseeable danger to the plaintiff, which could easily have been remediated to a large degree with the application of grip tape. The defendant breached its duty of care to keep the patio reasonable safe for the plaintiff.
While the plaintiff was not intoxicated, the defendant argued that the plaintiff would not have fallen but for her lack of attention. The plaintiff testified that, before the step, she had made eye contact with a friend and waved to him. The plaintiff admitted that she did not look down before she fell. The court did not accept the defendant’s argument. The court held that the plaintiff had no reason to anticipate a step. There was no warning or visual cue as to the change in elevation that caused the fall that would have drawn the plaintiff’s attention to the hazard. The plaintiff was not contributorily negligent.
The plaintiff was awarded judgment in the amount of $212,659, broken down as general damages of $100,000, pre-judgment interest of $21,250, special damages of $5,509, loss of earning capacity / competitive advantage damages of $50,000 and future care / housekeeping and home maintenance damages of $35,900.
