Occupiers of premises cannot be kept to an impossible standard such as the “elimination of every possible danger.” Photo credit: Shutterstock
If you walk into a store or a bank and get hurt tripping over something or having a chair collapse under you, who is responsible for your injuries?
The Supreme Court of British Columbia dealt with this question in the recent case Nerland. v. Toronto-Dominion Bank.
Philip Nerland, a bank customer, had a meeting at the TD’s Yaletown branch in Vancouver, B.C., in December 2012. After the meeting, Nerland went out in the public area of the branch and sat down in a chair at the sit-down wicket. When he leaned forward to grab some documents in front of him, the chair crumpled under him and he fell, sustaining serious injuries.
Nerland sued the bank based on the Occupier’s Liability Act of British Columbia, and in the alternative, negligence.
The court found the act didn’t apply in this case, because the case was about the safety of the chair, which is a chattel, and therefore does not fit under the definition of “premises” under the OLA.
Under the tort of negligence, the method of evaluation for occupier’s liability, based on the Supreme Court Case of Waldick v. Malcolm, is: “to take reasonable care in the circumstances to make the premises safe.”
The court accepted expert testimony from Wayne Brox, an engineer, as to how much effort it would take before the chair lost stability. As there was no means to test the exact chair Nerland had sat on the day of the accident, the expert examined an identical chair.
The expert found it took quite a lot of effort and weight to make the chair tip over, and Bronx found the chair to be “robust and sturdy.” Bronx also noted the floor condition to be good and sufficiently slip resistant.
The main point arising out of this case is while the company has a duty of care to make sure others are protected from an “objectively unreasonable risk of harm,” the standard has to be reasonable, not perfect. Occupiers of premises cannot be kept to an impossible standard such as the “elimination of every possible danger.”
The court also looks at whether the person, who is suing, contributed to the accident.
In this case, the court found the chair was “reasonably safe to sit in” and Nerland contributed to the chair tipping over by exerting “the effort required to tip the chair forward . . . to such a degree that it toppled out from under him,” and that it was his action that caused the fall.
Accordingly, the court found TD did not breach its duty of care owed to Nerland.
The point here is while companies must keep people reasonably safe on company property, people also have a responsibility not create unsafe circumstances for themselves.