Watch Out! Occupier’s Liability in British Columbia
In British Columbia, owners of homes and cabins must ensure that their premises are reasonably safe for guests. This duty is set out in the BC Occupiers Liability Act. At the same time we all, as guests at someone else’s home, have a duty to take reasonable care for our own safety, even if the premises are unsafe.
In some cases when a person is injured as unsafe premises, fault for the injury will be divided between the owner of the home (who should have made it reasonably safe), and the injured guest (who should have been more careful). One recent example is the decision of Supreme Court Justice Dardi in a case called Doucette v. McDaniel 2014 BCSC 42.
Mr. Doucette, represented at trial by Jon Harbut of our office, was a guest at a cabin which was undergoing some renovations. There was a stairwell leading to the basement that was unsafe because it had no guardrail. Mr. Doucette was walking backwards to take a photograph and fell into the stairwell to the basement below sustaining serious injuries. A guardrail would have prevented the fall. Prior to the fall, Mr. Doucette had been warned of the staircase and had in fact walked up and down the staircase. The defendant owner argued that knowledge of the risk and the warnings were sufficient to discharge her duty to make the premises reasonably safe. Madame Justice Dardi rejected this argument stating in her reasons for judgement:
In the end, given the foreseeable and unreasonable risk of harm the Stairwell presented, I am not persuaded that the defendant took reasonable care to ensure in all the circumstances Mr. Doucette would be reasonably safe in using the premises. As a result, I find the defendant breached her duty of care to Mr. Doucette.
Next, the judge turned her attention to the conduct of Mr. Doucette:
I turn next to consider whether Mr. Doucette failed to take reasonable care for his own safety and whether his failure to do so was one of the causes of the accident.
On the totality of the evidence, I find Mr. Doucette at fault for his failure to take reasonable care for his own safety. It is uncontroversial that Mr. Doucette was apprised of the hazard upon entering the residence. He had walked up and down the Stairwell. Having been apprised of the hazard, he should have proceeded more cautiously when he re-entered the residence from the deck. The failure to take reasonable care for his own safety was a contributing cause of this unfortunate accident.
Finally, the judge found the home owner to be 65% to responsible for the accident and found Mr. Doucette to be 35% responsible.
The Occupier’s Liability Act requires all owners or “occupiers” of premises, whether indoor, outdoor, home or place of business, to “take reasonable care in the circumstances to make the premises safe”. As in this case, if they do not, and someone is injured as a result, they will be liable for the injury.