07 Jul Occupier’s Liability
In Agar v. Webber, 2014 BCCA 297, the Defendant landowner had installed a ‘T’ shaped device to clean crabs on his dock. His neighbor, the Plaintiff, had been given permission to use the device but had not been given instruction or supervision when he began using it. The Plaintiff cleaned his first two crabs successfully but when cleaning his third crab the device stuck on his crab and he exerted more force. The crab shell came off abruptly, causing the Plaintiff to lose his balance and cut his hand on the device.
The trial judge found the Defendant liable under The Occupier’s Liability Act and noted that the sharpness of the underside of the device constituted an “unusual hazard.” The landowner appealed that decision.
The Court of Appeal (Smith J.A., with Levine and Garson JJ.A. concurring) found that the trial judge failed to properly consider all of the factors related to whether the device entailed an objectively unreasonable risk of harm, namely: whether there was a recognizable risk of injury;
- the gravity of the risk;
- the ease or difficulty with which the risk could be avoided; and
- the burden or cost of eliminating the risk.
As such, the error was reviewable on a correctness standard. The Court of Appeal then ruled that the object itself did not pose an unreasonable risk of harm, as evidenced by the Plaintiff himself cleaning two crabs without incident, and that the harm was caused by him losing his balance.