Canada: Case Summary: Goddard v Bayside Property Services Ltd

The British Columbia Court of Appeal held that a plaintiff can establish liability in an occupiers' liability case by circumstantial evidence when he/she cannot remember how he/she slipped and fell.

Goddard v Bayside Property Services Ltd, 2019 BCCA 148, Willcock J.A.

Facts + Issues

The Plaintiff Goddard slipped and fell on a wooden exterior staircase as he left his residence in Burnaby, BC. He did not know how he fell or what caused him to fall; he just knew that he ended up on his back at the bottom of the staircase. Goddard sued the property management company and the owners of the strata plan in which he lived for the physical damages he suffered in his fall. 

The trial judge allowed the matter to proceed by summary trial and dismissed Goddard's claim.  He held that:

  • "The plaintiff is required to prove on a balance of probabilities first, what condition or hazard caused his trip and fall; and second, that the condition or hazard existed due to a breach of duty by the defendants. If the plaintiff cannot prove the former, he cannot prove the latter";
  • "the court is not permitted to speculate to find what condition or hazard caused the plaintiff to fall";
  • "it is insufficient for the plaintiff to simply depose 'what else could it have been?'"; and that
  • Goddard had not established that the defendants:

    • failed to meet the requisite standard of care; and 
    • had caused his fall by breaching the duty of care owed to Goddard.

Goddard appealed the trial judge's decision on the following grounds:

  • The trial judge had erred by holding that a plaintiff must bring direct evidence in order to establish causation.
  • The trial judge erred in misapprehending, ignoring, or misconceiving the evidence.
  • The trial judge erred in concluding the action was suitable for summary trial.

HELD: The Court of Appeal allowed the plaintiff's appeal and ordered a new trial based on the trial judge's failure to address evidence relevant to standard of care and causation.

The Court held that a plaintiff does not need to provide direct evidence in order to prove that occupiers of premises caused them to slip and fall:

4  The appellant is correct to say it is not necessary to lead direct evidence of causation. He says a trial judge may reasonably draw an inference of causation by considering all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense (Citing R. v. Villaroman, 2016 SCC 33).

The Court held that "[it] might be possible to similarly construe the language of the trial judge in this case . . . as an emphatic statement of the conclusion that the plaintiff in this case is unable to establish the cause of his fall" but that the trial judge's reasons, read as a whole did not "support the conclusion that the trial judge appropriately weighed the evidence from which an inference of causation might reasonably have been drawn" (para. 5).  It was held that the trial judge erred by failing to consider evidence in a way that affected his conclusion that Goddard could not establish causation and a breach  of the applicable standard of care. Specifically, the trial judge was held to have committed the following errors: 

  • He did not clearly state in his reasons that the staircase was reasonably safe;
  • He did not address evidence that the treads of the exterior staircase were rotten;
  • He did not address inconsistencies between statements in the defendants' affidavits, photographic evidence, and evidence of the defendants' representatives on discovery;
  • He did not address the inconsistency between evidence indicating that the stairs were in generally poor condition and other evidence of regular and conscientious inspection; and
  • He erroneously believed the stairs had been inspected by the plaintiff and a strata council member shortly before the accident.
  • Additionally, the trial judge's failure to address the evidence of defects in the staircase (provided by way of an expert report) in any manner undermined his conclusion that credibility was not an issue.

The Court of Appeal left it to the Chambers judge's discretion on re-trial as to whether summary trial would be the appropriate process for deciding the dispute.

  • The Court of Appeal gave no opinion on whether the trial judge had erred in proceeding by summary trial in the first instance.

COMMENTARY

A number of cases decided in Alberta and elsewhere have indicated that where a plaintiff cannot say how their slip and fall occurred, they are unlikely to succeed in showing that such a fall was due to the occupier's negligence. Also, the doctrine of res ipsa loquitor has long been abolished in Canada: Fontaine v. British Columbia (Official Administrator)[1998] 7 WWR 25 (S.C.C.). With respect, this decision is a rogue one in holding that a plaintiff can prove that an occupier is liable for their slip and fall even when the plaintiff does not know and does not recall how or why they fell. Even if one accepts this proposition, we submit that this would be a very uphill battle in most such cases.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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