IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100301

Docket:
S084000

Registry: Vancouver

Between:

Valerie O’Leary

Plaintiff

And

Jason Rupert and Nancy Rupert

Defendants

Before: The Honourable Mr. Justice Voith

Reasons for Judgment

Overview

[1]            
The plaintiff, Mrs. O’Leary, and her son
rented a basement apartment in the house of the defendants, Mr. and Mrs. Rupert.
On January 12, 2007, Mrs. O’Leary slipped and fell in the driveway of the
Rupert home. She suffered a second-degree sprain of her ankle. She continues to
be impeded in some of the recreational activities that she historically
enjoyed.

[2]            
The action brought by Mrs. O’Leary asserts
both that the defendants were negligent in their maintenance of the driveway
and that they breached their obligations under the Occupiers Liability Act,
R.S.B.C. 1996, c. 337 (the “OLA”).

Issues

[3]            
The plaintiff’s claim gives rise to the
following distinct issues:

a)       Were the defendants negligent in the maintenance of their
driveway or did they act in a manner that is inconsistent with their
obligations under the OLA?

b)       Was the
plaintiff contributorily negligent?

c)       What loss
or harm has the plaintiff suffered?

Background

[4]            
Mrs. O’Leary, who was 45-years old at the
time of the accident, rented a two bedroom suite from the defendants. The terms
under which she rented these premises are contained in a standard form
Residential Tenancy Agreement dated April 19, 2006 (the “Tenancy Agreement”).
The house is a relatively new home located on Mary Hill Road in Port Coquitlam.
The photos that were produced indicate that it is an attractive home. Mrs. O’Leary
confirmed that the suite she rented with her son was also appealing. It was
common ground between the parties that the house and its gardens were well
maintained.

[5]            
The physical location of the house, its driveway
and the approach to Mrs. O’Leary’s apartment are all of some importance.
The home is constructed on a slope. From Mary Hill Road one turns into a
driveway that slopes downward. Mrs. O’Leary said the slope was
approximately 30°. That seems unlikely, but the relevant photos suggest that
the driveway is relatively steep.

[6]            
The home has two attached garages. Mrs. O’Leary
was provided with a designated parking spot in front of the smaller garage
which was on the left side of the house. The Ruperts used the larger garage
which was further right. The entrance to the Rupert home is to the far right of
the home. Mrs. O’Leary’s apartment had to be accessed from a stairwell
which was parallel to the far left side of the home.

[7]            
Thus, for Mrs. O’Leary to access her
apartment she would pull into the driveway and park in her designated spot. She
would exit her vehicle and walk towards the smaller of the garages. In front of
that garage and leading to the left of the house was a somewhat covered
pathway. It was perhaps 5-10 feet from the garage to the edge of the home. When
one turned at the far left of the home the path was level for about 5-10 steps.
There was then a stairway which descended for about 12-15 steps, was level for
a brief area and then descended for a further 5 steps or so. Mrs. O’Leary’s
apartment was at the bottom of the stairway towards the back of the home.

[8]            
There was one light on the stairway which
operated on a motion detector or sensor. There were three separate lights on
the front of the house facing the driveway. If one imagines the two garages
beside each other, the lamps were placed to the far left of one garage, to the
far right of the other garage and on the pillar in the centre which separated
the two garages. The lamps would only operate if turned on from inside the
Rupert residence. There were no municipal lamps in front of the Rupert home.
Indeed, there was no municipal lighting in front of either of the residences
which were adjacent to the Rupert home or across the street from their home.
The nearest such lamps were placed in front of both homes which were two houses
down from the Rupert residence.

[9]            
On Friday, January 12, 2007, Mrs. O’Leary
drove home after work. She arrived home between 5:30 and 5:45 p.m. Mrs. O’Leary
said and, for reasons I will further explain, I accept, that none of the lights
at the front of the Rupert home were on. Mrs. O’Leary was aware the
driveway was slippery. She had previously had trouble backing out of the
driveway. Accordingly, she said, and again I accept, that she backed the car
into her designated spot so that she would be able to exit more easily when she
next pulled out. Mrs. O’Leary was wearing flat-soled practical boots. She
got out of her car, kept one hand on her car and took “baby steps” towards the
garage. She sought to get to the pathway that would take her to the staircase
leading to her apartment. When she was a few feet past the end of her vehicle,
but before she reached the pathway, she slipped and fell. When she fell, she
first hit her right hip and then her right shoulder. She also injured her left
ankle. Her initial belief was that she broke the ankle.Mrs. O’Leary was
unable to move for a few minutes. She shouted for help, but no one heard her.
She then crawled to her purse and called her son, who was at home, on her cell
phone. With his assistance she was able to go down the staircase on her backside
and to get into her apartment. She then called her sister, who resides in North
Delta with her husband, for assistance. Mr. and Mrs. Hume drove
straight to Mrs. O’Leary’s home, assisted her out of her apartment and
into their car and drove her to the Emergency department of Eagle Ridge
Hospital. Mrs. O’Leary was seen by hospital staff, had the necessary
x-rays taken and was told her ankle was not broken. She was given a set of
crutches and was driven home by Mr. and Mrs. Hume. She first
attempted, without success, to return to work on the following Wednesday,
January 17, 2007. She was on crutches for a period of approximately three
weeks. Her condition has gradually improved since that time.

[10]        
Apart from the foregoing general facts, a
considerable amount of evidence was led in relation to various specific facts
or categories of fact. Some of this evidence was consistent as between the
parties – much was not. Before turning to this evidence, I should say that I
believe that each of Mrs. O’Leary and Mr. and Mrs. Rupert, all
of whom gave evidence, were generally truthful people. They responded to
questions in a forthright manner. They were measured in their responses. They
made admissions that were not helpful to their respective positions. Many of
the differences that exist in their evidence are qualitative in nature.

Areas Where
the Evidence of the Parties was Consistent

[11]        
It is common ground that in the December 2006
and January 2007 period there was an exceptional amount of snowfall in the
Lower Mainland. Indeed it appears that on January 10, 2007 there was a record
amount of snowfall. Mrs. O’Leary accepted, in cross-examination, that the
amount of snow during this period was “the worst in 20 years” and that “it was
hard to keep up with.”

[12]        
It is common ground that Mr. and Mrs. Rupert
were very diligent about shovelling their driveway. If snow fell during the
day, they would shovel it when they returned home from work. If it fell
overnight, they would shovel it before they left for work the next morning. On
the day of the record snowfall, January 10, 2007, they shovelled their driveway
on three separate occasions.

[13]        
Though the defendants now argue that under the
terms of the Tenancy Agreement it was Mrs. O’Leary’s responsibility to
maintain the portion of the driveway that was allocated as a parking spot for
her vehicle, they accept that at all times it was they who shovelled that area.
They also accept that they never suggested to Mrs. O’Leary that shovelling
or otherwise maintaining the portion of the driveway in question was her
responsibility. Conversely, at all times it was Mrs. O’Leary who shovelled
or swept the stairway on the side of the Rupert home that led to her suite.

[14]        
It is common ground that prior to Mrs. O’Leary’s
accident the Ruperts never applied sand or salt or any other traction agent to
their driveway. Following Mrs. O’Leary’s accident, and after receiving a
letter from her solicitor, they began to apply salt to their driveway after it
was shovelled. They have done so, following a snowfall, to this day. Similarly,
Mrs. O’Leary had never applied salt or sand to the staircase she shovelled
and maintained. She had tried to buy salt or sand on January 11 at several
stores, but was unable to do so because the stores had sold out their supplies
of these materials.

Areas Where
the Evidence of the Parties is Not Consistent

[15]        
Mrs. O’Leary said that on the evening in
question, the lights in front of the Rupert home were off and that it was
“pitch dark” in the area of the driveway. She further said that these lights
were rarely kept on and that she believed she had raised this matter both
verbally and by e-mail on two earlier occasions. The Ruperts said that they
generally tried to keep the light on in the evenings, that in any event there
was some ambient light on the driveway and that Mrs. O’Leary only raised
the question of keeping the front house lights on, on one occasion, which
post-dated her injury.

[16]        
I find that on the Friday evening in question,
the lights in front of the Rupert home were not on. Apart from the evidence of Mrs. O’Leary,
I base this conclusion on the evidence of Mr. and Mrs. Hume who, when
they arrived at the Rupert home, found the front lights were off and struggled
in the dark to make their way to Mrs. O’Leary’s suite. Indeed, the lights
were still off when they returned from the hospital a few hours later. My
conclusion is further based on the fact that on the evening in question, neither
Mr. or Mrs. Rupert had arrived home before Mrs. O’Leary was
injured. I have said that those lights had to be turned on from inside the
Rupert home. There was then no way that the lights could have been on unless
they had been left on throughout the day. There was no evidence that this was
the Ruperts’ practice.

[17]        
I also find that it was very dark in the
driveway area when the lights were not on. The days would have necessarily been
short at that time of year. The municipal lights were several homes distant. In
fact, Mrs. O’Leary testified, and I accept, that one of those street
lights was burned out at the time. Mrs. O’Leary, who is a smoker, was
certain about the issue because she often walked to the lamp post to have a
cigarette. Neither of the Ruperts were able to definitively address the
condition or state of this street light. Still further, Mr. Jackson, a
friend of Mrs. O’Leary, gave evidence that Mrs. O’Leary had called
him around Christmas time to ask about who she should contact to get the street
lamp repaired. Mr. Jackson works for the West Coast Express in a capacity
that made him privy to this information.

[18]        
I also find that prior to the accident the
Ruperts were inconsistent in their practice of keeping the front lights on.
They acknowledged they would sometimes forget to turn the lights on. They also
accepted that they would sometimes inadvertently turn the particular switch,
which is one of a bank of switches, off. They apparently now keep the light
switch taped open much of the time.

[19]        
I do not accept that Mrs. O’Leary spoke to Mrs. Rupert
about her concern in relation to keeping the front lights on prior to her
injury or accident. Her memory was vague while Mrs. Rupert was adamant that
this had not happened. Furthermore, the manner in which and promptness with
which the Ruperts responded in other instances when Mrs. O’Leary raised a
concern about her suite suggests they would have responded to a concern about
the lights in a similar fashion.

[20]        
I also do not accept that Mrs. O’Leary
e-mailed Mrs. Rupert about her concern with the lights prior to her
injury. Though Mrs. O’Leary was certain she had sent such an e-mail, the
objective evidence is not consistent with this. Neither Mrs. O’Leary nor Mrs. Rupert
could locate such an e-mail though each has a general practice of saving rather
than deleting their e-mails. Furthermore, on January 14, 2007, Mrs. O’Leary
did send Mrs. Rupert an e-mail about the lights. That e-mail said:

Thanks Nancy

Yes, this is the worse winter here ever! I
think it’s because we had such a nice summer, it’s payback time.

Can I request
the front outside lights be left on during this time? I am not going anywhere
soon but it’s still quite icy and I’m scared Matthew will be next. That’s what
happened on Friday, I couldn’t see where I was going and stepped right onto the
icy patch. I did try to buy salt or sand on Thursday night but it was sold out
everywhere.

Val

[21]        
There is nothing in the language or tenor of
this e-mail to suggest that such a request had been made at an earlier date. I
believe that if this e-mail was the second e-mail addressing the same issue
that point would have been made.

[22]        
In a similar vein, Mrs. O’Leary said she
had spoken to Mr. Rupert some days prior to her injury about putting sand
or salt on the driveway. Mr. Rupert denied this had occurred. I accept the
evidence of Mr. Rupert. I do so in part because of the earlier history of
the Ruperts in responding to concerns raised by Mrs. O’Leary. Furthermore,
at the time Mrs. O’Leary says she made this request, she herself had made
no effort to obtain or apply salt or sand to the stairs she maintained, though
by all accounts, those stairs were precarious, particularly in the dark. Finally,
Mrs. O’Leary’s January 14, 2007 e-mail, which addresses the safety of the
driveway, does not reference any such earlier request.

[23]        
Mrs. O’Leary testified that the driveway
was often slippery or icy. She said, as I have indicated, that she slipped on
ice on the evening in question. Mr. and Mrs. Rupert denied the
condition of the driveway was icy or otherwise precarious. Mr. Rupert also
said that on the Friday evening when he learned that Mrs. O’Leary had been
injured he inspected the surface of the driveway and was satisfied with its
condition. Here I accept the evidence of Mrs. O’Leary. It is consistent,
as it pertains to the evening of January 12, with the evidence of Mr. and Mrs. Hume.
Though they knew that Mrs. O’Leary had just fallen and though they were
very careful, both said they also almost fell as they made their way along the
driveway to her suite. They also testified that the surface was very precarious
when they returned from the hospital some hours later. A number of Mrs. O’Leary’s
friends gave evidence about the condition of the driveway on earlier or
subsequent dates. They uniformly expressed the view that the driveway was
routinely slippery or icy.

[24]        
The defendants also placed some emphasis on an
excerpt from a clinical record from the hospital where Mrs. O’Leary was
treated on the Friday evening when she was injured. That record states, in
part, “Slipped on the ice @ 18:30. Rolled ankle – didn’t fall, caught self
w/arm …”. I have given that record no weight. It is inconsistent with Mrs. O’Leary’s
evidence of what transpired and of how she hurt herself, which I accept. It is
also inconsistent with an entry on the same page which states, “At home fall,
slipped on ICE/Fell” and with an entry a few pages later in the same records
which states, “fell walking on ice @ 18.30 today”.

The
Relevant Statutory and Contractual Framework

[25]        
The defendants were subject to various common
law and statutory obligations. The Statement of Claim does not refer to or rely
on the Residential Tenancy Act, S.B.C. 2002, c. 78 (the “RTA”).
Nevertheless, the RTA was relied on in argument by counsel for the
plaintiff without objection from the defendants. Section 1 of the RTA
defines “landlord” in the following terms:

“landlord”, in relation to a rental unit,
includes any of the following:

(a)      the owner of the rental unit, the owner’s agent or another
person who, on behalf of the landlord,

(i)      permits occupation of the rental unit under a tenancy
agreement, or

(ii)     exercises
powers and performs duties under this Act, the tenancy agreement or a service
agreement;

[26]        
Section 32 of the RTA requires a landlord
to maintain residential property in a state of repair and specifically
provides:

32 (1)   A landlord must provide and
maintain residential property in a state of decoration and repair that

(a)     complies with the health, safety and housing standards required
by law, and

(b)     having regard
to the age, character and location of the rental unit, makes it suitable for
occupation by a tenant.

[27]        
The OLA is also directly relevant.
Section 1 of the OLA defines an “occupier” in the following terms:

“occupier” means a person who

(a)     is in
physical possession of premises, or

(b)     has responsibility for, and control over, the condition of
premises, the activities conducted on those premises and the persons allowed to
enter those premises,

and, for this Act, there may be more than
one occupier of the same premises;

[28]        
Section 3 of the OLA sets out the duty of
care of an occupier:

3 (1)     An occupier of premises owes a
duty to take that care that in all the circumstances of the case is reasonable
to see that a person, and the person’s property, on the premises, and property
on the premises of a person, whether or not that person personally enters on
the premises, will be reasonably safe in using the premises.

(2)        The duty of care referred to in
subsection (1) applies in relation to the

(a)     condition
of the premises,

(b)     activities
on the premises, or

(c)     conduct of third parties on the
premises.

[29]        
Section 6(1) of the OLA makes clear that
duties established under that Act are applicable to tenancy relationships:

6(1)      If premises are occupied or used
under a tenancy under which a landlord is responsible for the maintenance or
repair of the premises, it is the duty of the landlord to show toward any
person who, or whose property, may be on the premises the same care in respect
of risks arising from failure on the landlord’s part in carrying out the
landlord’s responsibility, as is required by this Act to be shown by an
occupier of premises toward persons entering on or using the premises.

[30]        
Section 6(3) of the OLA further expands
on the liability of a landlord and provides:

(3)        For the purposes of this section

(a)     a landlord is not in default of the landlord’s duty under
subsection (I) unless the default would be actionable at the suit of the
occupier,

(b)     nothing relieves a landlord of a duty the landlord may have
apart from this section, and

(c)     obligations
imposed by an enactment in respect of a tenancy are deemed to be imposed by the
tenancy.

[31]        
In this case the plaintiff argues that the
defendants’ duty of care arises from the operation of each of the RTA
and the OLA as well as the law of negligence. Neither of these two
statutes imposes a higher duty of care on a landlord than the law of
negligence: Jakobsons v. Wall Financial Corp., [1998] B.C.J. No. 1641
(S.C.) at para. 18; Tolea v. Ialungo, 2008 BCSC 395, 69 R.P.R.
(4th) 142, at para. 26.

[32]        
The plaintiff relies on the provision of the RTA
to argue that the defendants’ breach of their statutory duty gives rise to an
action in tort. However, the RTA does not create a claim for breach of
statutory duty: Tolea, at para. 43. A failure to comply with the RTA
does not, in and of itself, give rise to an action in tort:  MacLeod
v. Yong, [1997] B.C.J. No. 2108 (S.C.), aff’d 1999 BCCA 249, 67
B.C.L.R. (3d) 355.

[33]        
The interplay of these various statutory
provisions has been considered and addressed on several occasions. In Zavaglia
v. Maq Holdings Ltd. (1983), 50 B.C.L.R. 204 (Co. Ct.), the court
said at p. 215:

In summary then, s. 30(1) of the
Landlord and Tenant Act [now s. 32 of the RTA] imposes
a duty on the landlord to make repairs to ensure that the demised premises
meet safety standards required by law. This duty is not subject to the
tenant notifying the landlord of the defect. Section 6(3)(c) of the Occupiers
Liability Act incorporates this statutory duty into the tenancy agreement.
Thus, the landlord, with respect to residential property, has the
responsibility to make repairs relating to safety. This is a duty he owes the
occupier of the premises. The defendant in this instance failed in his duty to
repair the property, that is, to install the railing. This default in duty
gives rise to an action in tort by the visitor of the tenant against the
landlord, pursuant to s. 6(1) of the Occupiers Liability Act, which
gives a visitor the same right of action as the occupier.

Having concluded that the landlord owes a
duty of care to the plaintiff, the next question is whether he has failed to
meet the standard of care imposed on him.

The standard of care owed by the landlord
pursuant to s. 6(1) of the Occupiers Liability Act is set out in
s. 3(1) which provides:

3. (1) An
occupier of premises owes a duty to take that care that in all the
circumstances of the case is reasonable to see that a person, and his property,
on the premises, and property on the premises of a person, whether or not that
person himself enters on the premises, will be reasonably safe in using the
premises.

The test is an objective test, namely, that
of a reasonable man. The learned author, Mr. Di Castri, at p. 217 of
his book outlined several factors that courts have considered in applying this
test; they are:

(1)     Whether the plaintiff, in the light of his own knowledge,
exercised reasonable care for his own safety;

(2)     Whether the occupier’s conduct accorded with an accepted
standard of practice;

(3)     Whether the occupier’s system of inspection or supervision
was commensurate with the risk, the length of time the danger was allowed to
exist being highly relevant;

(4)     The steps necessary to remove the danger and the consequent
burden on the occupier; and

(5)     Whether or not
the danger was foreseeable in accordance with the principle enunciated in Donoghue
v. Stevenson, [1932] A.C. 562 (H.L.).

[34]        
More recently in Tolea, and in referring
to Zavaglia, Mr. Justice Silverman said, at para. 61:

1.      A landlord’s obligation is to not
only provide but to maintain buildings in a state of repair that complies with
the housing standards required by law.

2.      Section 6 of the OLA imposes
an occupiers duty of care on a landlord where there is “a tenancy under which a
landlord is responsible for the maintenance or repair of the premises”.

3.      A landlord’s duty to repair is as
set out in both the tenancy agreement and the RTA.

4.      A landlord’s duty to inspect is part
of the duty to provide and maintain residential premises in a reasonably
suitable state under the RTA, as well as part of a landlord’s duty to
take reasonable care in carrying out the responsibility for repair of the
premises under s. 6 of the OLA.

5.      A landlord with a duty to repair
under the RTA has a duty to make reasonable inspections of the premises
for defects, regardless of whether he or she has notice or actual knowledge of
defects.

6.      The OLA imposes a duty of
reasonable inspection on both the landlord and tenant. The standard of
reasonableness for each party must be determined according to their respective
positions and responsibilities. The standard of reasonable inspection imposed
on a landlord will likely be elevated above that imposed on a tenant where the
following factors occur:

(a)     the landlord
has observed the evolution of a residence through multiple tenancies and
repairs and alterations;

(b)     the landlord
has the legal responsibility for maintaining and repairing the premises;

(c)     where the area of concern relates to a structural defect
that existed prior to the current tenancy.

7.      The
tenant’s duty will likely be limited to the reporting of defects or damages
discoverable by reasonable inspection in the circumstances, not apparent upon
ordinary visual observation: Klajch (Guardian ad litem of) v. Jongeneel,
2002 BCCA 14, 174 B.C.A.C. 184 [Klajch]; Zavaglia.

[35]        
Section 3 of the Tenancy Agreement, under the
heading “Rent” and the subheading “What is included in the rent”, establishes
that Ms. O’Leary was to receive, inter alia, water, electricity, heat,
various appliances and parking for one vehicle. The defendants argue that
because Mrs. O’Leary was provided with an area in the driveway where she
could park her vehicle, the obligation to clear and maintain that area fell to
her. I do not accept this for two reasons.

[36]        
First, s. 10 of the Tenancy Agreement under
the heading “Repairs” states:

1)    Landlord’s
obligations:

a)    The landlord must provide and
maintain the residential property in a reasonable state of decoration and
repair, suitable for occupation by a tenant. The landlord must comply with
health, safety and housing standards required by law.

[37]        
The RTA, in s. 1, defines
“residential property” as follows:

“residential
property” means

(a)     a building, a part of a building or a related group of
buildings, in which one or more rental units or common areas are located,

(b)     the parcel or parcels on which the building, related group
of buildings or common areas are located,

(c)     the
rental unit and common areas, and

(d)     any other structure located on the
parcel or parcels;

[38]        
The obligation of the Ruperts under the Tenancy Agreement
was to “maintain the residential property in a reasonable state of …. decoration
and repair.” Conversely, the obligation of Ms. O’Leary under s. 10 of the
Tenancy Agreement was to “maintain reasonable health, cleanliness and sanitary
standards.” In saying this, I recognize that as a matter of practice Mrs. O’Leary
swept and shovelled the stairs and pathway leading to her suite.

[39]        
Second, as I have said, it is common ground that
the Ruperts maintained and shovelled the whole of their driveway without ever
suggesting to Mrs. O’Leary that this obligation properly fell to her. Liability
may be imposed on a party who has voluntarily undertaken to do something they
were not otherwise obligated to do: see Goodwin v. Goodwin, 2007 BCCA
81, 64 B.C.L.R. (4th) 280, at para. 26. Where that voluntary task is
performed negligently and causes foreseeable harm to a plaintiff, liability may
arise. Once the Ruperts undertook to maintain and shovel the whole of their
driveway, regardless of whether they were under a legal obligation to do so, they
had a duty not to perform this task negligently.

Analysis

[40]        
In MacLeod, Mr. Justice Burnyeat listed
a series of factors, and the legal authorities where they are referred to, that
are relevant in considering whether an occupier has fulfilled the duty imposed
by s. 3 of the OLA. These factors include “whether an unusual
danger was present, whether a
warning had been provided to the plaintiff, the ease or
difficulty and the expense with which the unusual danger could have been
remedied, and any prior record of safe usage of the premises by others or by the
plaintiff.”

[41]        
In this case, the application of most of these
factors, together with the factors I have referred to earlier that emanate from
Zavaglia, support the conclusion that the defendants breached the duty
of care they owed to the plaintiff. The driveway of the Rupert home was sloped.
I have found that it was routinely slippery and that it was icy on the night of
January 12, 2007. It was dark on that evening and it was routinely unlit. These
factors, in combination, gave rise to a situation that was unsafe or hazardous.
In addition, the defendants knew that Mrs. O’Leary was required to cross over
parts of the driveway, after exiting her car, to access her suite. Her use of
the areas in question and the hazards it presented were thus foreseeable.

[42]        
In saying this, I recognize that we live in a
relatively northern climate and that our winter weather conditions often create
an environment that is inherently precarious. In Brown v. British Columbia
(Minister of Transportation and Highways), [1994] 1 S.C.R. 420 at p. 439,
the court said “Ice is a natural hazard of Canadian winters. It can form
quickly and unexpectedly. Although it is an expected hazard it is one that can never
be completely prevented.”

[43]        
Still further, I accept that the standard or
test is one of “reasonableness and not perfection”: Fournier v. Grebenc,
2003 NBQB 221, [2003] N.B.R. (2d) (Supp.) No. 28 at para. 31.
Finally, I recognize that this case deals with a residential home rather than
an apartment building, as in Neilson v. Bear, [1999] B.C.J. No. 86
(S.C.), or a shopping centre, as in Murphy v. Interprovincial Shopping
Centres Ltd., 2004 NLSCTD 210, 241 Nfld. & P.E.I.R. 316, or a parking
lot, as in Parmar v. Imperial Parking Ltd., [1977] B.C.J. No. 486
(S.C.), where the standards and procedures established by the landlord in
response to winter conditions are designed to accommodate greater volumes of
personal traffic. Accordingly, they are likely to be more rigorous or exacting.

[44]        
Nevertheless, the conditions that existed at the
Rupert home were unnecessarily unsafe. I say unnecessarily unsafe because with
little effort and at modest expense the conditions on the driveway could have
been much improved. The simple installation of lighting that worked either on a
timer or on a motion detector would have provided Mrs. O’Leary with the
illumination necessary to better see where she was walking. Both devices are
inexpensive. Both would have addressed the inconsistency with which the Ruperts
turned on their outside lights or the occasions where, as in the case of the
evening when Mrs. O’Leary fell, they had not yet arrived home from work to
turn on the lights.

[45]        
Similarly, the use of salt or some other
traction agent would have addressed the icy condition of the driveway. Though
the Ruperts were diligent about shovelling their driveway, that step, without
more, was not enough. Once again this step would have been relatively
inexpensive and would not have been time consuming.

[46]        
I am also satisfied that the failure of the
defendants to take these measures to address the icy and precarious condition
of the driveway caused Mrs. O’Leary to fall.

[47]        
It is noteworthy that the Ruperts have, since Mrs. O’Leary’s
accident, both taped the switch for the outside lights open and begun to apply
salt to their driveway following a snowfall. It is clear that post-accident
conduct cannot be viewed as an admission of negligence: Anderson v. Maple
Ridge (District) (1992), 71 B.C.L.R. (2d) 68, 17 B.C.A.C. 172 (C.A.) at
p. 75. Nevertheless, in Anderson, Wood J.A., as he then was,
concluded that moving a stop sign after an accident was relevant to the
question of whether it was difficult to see prior to the accident. Here the
steps taken by the defendants post-accident are relevant to whether the
driveway was dark and whether it remained slippery or icy after being shovelled.

[48]        
Similarly, post-accident conduct can be used as
an indication of the ease with which a risk might have been avoided: Niblock
v. Pac. Nat .Exhibition. (1981), 30 B.C.L.R. 20 (S.C.) at p. 25.

Was the
Plaintiff Contributorily Negligent?

[49]        
The Statement of Defence advances several
particulars of negligence on the part of Mrs. O’Leary. These were repeated
in argument. It was also argued that had Mrs. O’Leary driven directly into
the driveway rather than reversed into it, she would have exited closer to the
walkway that led to her suite.

[50]        
I do not believe that any negligence on the part
of Mrs. O’Leary has been established. She was aware the driveway was
treacherous and backed in with her car so that she would be able to pull out
more easily the next day. She got out of her car carefully and took the
shortest path to the garage door which was partially covered and less
precarious. She held the side of her car for its length. She took “baby steps”.
She wore flat soled boots. She fell after she had to let go of her vehicle. She
knew the driveway was icy and she proceeded with caution. Her conduct
throughout was reasonable and directed to addressing the condition of the
driveway.

[51]        
In each of Stankovic v. Wong, [1996]
B.C.J. No. 2430 (S.C.), and Cullinane v. City of Prince George,
2000 BCSC 1089, 13 M.P.L.R. (3d) 189, a plaintiff who fell, knowing of icy or
slippery conditions and pressing on with knowledge of that risk, was found
contributorily negligent. In each of those cases, however, the court was
satisfied that there was a reasonable and safer alternate access route
available to the plaintiff. Here, Mrs. O’Leary took the only path that led
to her suite. There was no evidence led of any alternate pathway or route
available to her which would lead to her suite.

[52]        
Accordingly, I do not accept that Mrs. O’Leary’s
conduct contributed to her accident or injuries.

Evidence
Relating to Mrs. O’Leary’s Injuries and Their Impact on Her Activities

[53]        
Immediately prior to the accident, Mrs. O’Leary
was employed in an administrative position with the WE Group of Companies. She
has since obtained different employment for reasons unrelated to this action. She
was also an unusually active person. She was a person who rode a bike or
rollerbladed at least weekly when the weather permitted. She skied regularly.
She was a very avid walker and hiker. Importantly, she was extremely involved
with local search and rescue activities and had been so involved for more than
a decade at the time of her injury. Search and rescue team members are called
on for assistance approximately 40-45 times a year. Mrs. O’Leary had
historically attended at 70-80% of such calls for assistance. Search and rescue
members also generally train at least once a week and sometimes more often.

[54]        
Mrs. O’Leary was an instructor for an
introductory ground search and rescue course. She was also one of a limited
number of persons who was trained in a Critical Incident Stress Management Peer
Program to provide assistance to team members or to do debriefings after
certain searches. Mrs. O’Leary was also taking courses within the
Provincial Emergency Program with the ultimate goal of obtaining an Emergency
Management Certificate. That Certificate, in turn, would potentially enable her
to secure employment in the area of emergency management planning. Apparently,
a number of municipalities and other organizations provide employment
opportunities in this area.

[55]        
During the accident, Mrs. O’Leary bruised
and scraped her hip, strained her neck and shoulder and sprained her ankle.
After her attendance at the Emergency ward of the Eagle Ridge Hospital,
Mrs. O’Leary spent the next five days at home and took Tylenol 3, which
she had obtained from her sister. She succeeded in returning to work the
following Thursday and, apart from various medical exams or treatments, has
missed no further work. She was on crutches for approximately three weeks and
was cared for during this period by a good friend, Ms. Latuillipe. I will
return later to the details of this assistance.

[56]        
A little more than a week after her injury,
Mrs. O’Leary returned to a walk-in clinic and asked that further x-rays be
taken of her ankle because she was convinced it was broken. A little more than
two months after the accident, Mrs. O’Leary also went to see her family
doctor, Dr. Paul, in Abbotsford. She continued to see Dr. Paul in
connection with her ankle injury with some regularity over the next year. During
this same period, Dr. Paul diagnosed Mrs. O’Leary with diabetes and
many of her subsequent visits to Dr. Paul served the dual purpose of
dealing with both her ankle and her diabetes. Dr. Paul prepared an expert
report which was tendered at trial and in respect of which he was not
cross-examined.

[57]        
Mrs. O’Leary went to physiotherapy for her
ankle about five times in the first nine months following her accident. Since
January of this year, Mrs. O’Leary has been seeing a neuromuscular
specialist every second week in an ongoing effort to strengthen her ankle.

[58]        
For the first month following her accident,
Mrs. O’Leary did not participate in any of her usual recreational
activities. After six months she had resumed taking regular daily walks. She
continued to miss classes relating to her search and rescue training with the
Provincial Emergency Program. She attended some search and rescue training
programs if they were not physically demanding. Search and rescue activities
have various finite and specific descriptions. Some are mountainous rescues.
Others are whitewater or streamside rescues. Others are urban rescues where
team member activities are often based on door-to-door searches.
Mrs. O’Leary’s activities were limited to this last form of rescue activity.
Though she could walk for up to four hours if necessary, such extended activity
continued to cause swelling in her ankle and for her to limp. Throughout this
period, Mrs. O’Leary also avoided her other hobbies such as rollerblading,
biking and skiing.

[59]        
Mrs. O’Leary’s neck and shoulder problems
and her associated headaches were all described as minor in comparison to her
ankle pain and problems. Mrs. O’Leary said these other sources of
discomfort were resolved within six months.

[60]        
Within a year, Mrs. O’Leary had returned to
most search and rescue training programs. She continued to take Advil if she
went out with a team. She continued to avoid any demanding activity in the bush
or where the terrain was uneven. She had resumed cycling and was continuing to
walk regularly.

[61]        
At present, Mrs. O’Leary continues to have
difficulty with certain types of activity. She is able to go on extended walks
where the paths are cemented or relatively flat. She does these walks regularly
and with little difficulty. The defendants retained an investigator who
followed and videotaped the plaintiff on one such walk. It is a walk that was
80-90% flat. The balance of the walk was somewhat sloped. When
Mrs. O’Leary was videotaped she was wearing sandals and her friends were
wearing flip-flops as was the investigator. I mention this because the use of
such footwear speaks volumes about the relatively benign nature of the trail.
So too does the fact that Mrs. O’Leary had done this trail both with her
son, when he was 8-years old, and with her mother.

[62]        
The defendants sought to assert, through the
evidence of the investigator, that Ms. O’Leary had scrambled over some
logs that crossed the path of this walk. Ms. O’Leary denied this and said
she had taken a short detour around these logs. I accept this evidence. The
investigator admitted in her evidence and on cross-examination that she was
initially uncertain who Ms. O’Leary was within the group that went on the walk.
I am of the view that she was simply mistaken in her identification.

[63]        
Mrs. O’Leary drew a distinction between
walks and hikes. The latter form of activity required appropriate footwear. It
was activity that might occur on a more demanding trail or it might, in the
case of search and rescue activity, be in the open bush on very uneven terrain.
Mrs. O’Leary continues to be very restricted in her ability to participate
in such activity. Indeed, she described her present condition as “limited”.

[64]        
She continues to be unable to engage in many
search and rescue activities. Her involvement in certain rescue activity would
constitute a potential liability for her team. Where she once participated in
70-80% of rescue calls, that figure is now 50%. She had various favourite hikes
such as Burke Mountain which she no longer can do. One of her other favourite
hikes was called Minnekada. This hike and the area around it hold a special
place for her. She had earlier placed her mother’s ashes there. Whereas she had
done this hike on a weekly basis in the past, she now only does the hike once
every several months. She has not yet rollerbladed. She hopes to resume skiing
this year.

[65]        
I find that the foregoing description of
activity, given by Mrs. O’Leary, is accurate. I considered her evidence to
be measured and, if anything, understated. It was also supported by the
evidence of Ms. Latuillipe and Ms. Orr, both of whom had gone on
relatively short walks or hikes with Mrs. O’Leary in the recent past, but
had had to stop or turn around because Mrs. O’Leary’s ankle was causing
her difficulty. These witnesses also addressed other activity, not referred to
by Mrs. O’Leary, that she had been unable to participate in. Such activity
included volleyball and various charitable functions and dances.

[66]        
Dr. Paul’s report, dated February 6, 2008,
in addressing Mrs. O’Leary’s condition and future prognosis, said:

January 15th, 2008, review on diabetes and
lifestyle and detailed exam for her injury sites, which was minor whiplash of
the cervical spine, trapezius muscle trigger spots still somewhat evident. The
ankle and an ankle brace review, and physiotherapy the mid instep ankle pain as
well as a lateral malleolus ligament insertions persistent pain on deep
palpation and extreme internal and external rotation extension and flexion. It
was suggested that she at this point take Advil 600mg twice a day on a regular
basis for pain relief and then gradually increase her activities to tolerance.

February 5th,
2008 visit, she comes back surprising herself that the Advil has made a
remarkable difference to her pain tolerance. The ankle full range of motion now
has recovered, and she is able to do the activities she was used to which was
extended walking, some hiking, and treadmill walking, and she is optimistic of
being able to return to the passion of doing twice weekly biking, skiing, and hiking,
as well as her search and rescue operations supervision.

[67]        
That same report states:

In summary, this
lady has missed work, initially the first two months after her injury with an
emotional impact to her status, and an interference in dealing with the new
endocrine issue of diabetes. She is currently able to face other lifestyle
issues of smoking and able to give herself to the importance of doing the
lifestyle changes. Impact on the life of Valerie over the last thirteen months
has been the pain tolerance and lack of exercise distraction social and
activity limitations plus the work absenteeism she has experienced.

[68]        
Dr. Paul’s letter dated February 13, 2009
states:

Last injury
review was February 5, 2008, at which time she continued to mention that she could
not ski or bike ride or hike, and had missed work due to the injury, and this
continues to be an ongoing intermittent discomfort for her in pursuing the
exercise program required for her good diabetic care.

[69]        
The plaintiff directed me to a number of cases
which supported an award of between $18,000 and $57,000 for non-pecuniary
damages. Those cases included Varriale v. Westfair Foods Ltd.,
[1994] B.C.J. No. 2161 (S.C.); Edwards v. Khuong, 2001 BCSC 380; Harris
v. Freeman, [1994] B.C.J. No. 1393 (S.C.); Perret v. West Vancouver
(District), [1993] B.C.J. No. 775 (S.C.) and Dudley v. Orca Bay
Arena Corp., 2002 BCSC 889.

[70]        
Conversely, the defendants argued in favour of
an award of approximately $3,000 and relied on Hayjee v. Beausoleil, 2002
BCPC 10, in support of such an award.

[71]        
The award for non-pecuniary loss advocated by
the defendants significantly understates and fails to realistically address the
nature and extent of Mrs. O’Leary’s injuries. Instead, an appropriate award
for such loss, having regard to the injuries I have described and their impact
on Mrs. O’Leary and her lifestyle, as well as the authorities I have
referenced, is $25,000.

Wage Loss

[72]        
The evidence of Ms. Kauryzshka, a
representative of the plaintiff’s former employer, established that Mrs. O’Leary’s
absences from work translated into one day’s wages which she could no longer
bank as a vacation day. That lost day had a monetary value of $160.00.

In Trust
Claim

[73]        
In the recent case of Bradley v. Bath,
2010 BCCA 10, Tysoe, J.A., writing for the court, said:

[43]      An
in-trust award is one made to a plaintiff in trust for one or more of his or
her family members, who are not named as parties to the action, as compensation
to the family members for additional work done by them as a result of the impaired
capacity of the plaintiff to perform housekeeping chores or to care for
themselves. It was affirmed as a recoverable award by this Court in Kroeker
v. Jansen (1995), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d) 178 (C.A.).

[74]        
In this case, the in trust claim was properly
pled. Bystedt v. Hay, 2001 BCSC 1735, at paras. 178-180, aff’d 2004
BCCA 124, 24 B.C.L.R. (4th) 205, established a series of factors which are
relevant in assessing an in trust claim.

[75]        
In essence, such a claim is available where
services are provided outside the normal range of duties of a friendship and
which would have had to be done by a hired third party if the friend did not
perform them. Such services need not be of a professional nature. In quantifying
an in trust claim, the court will award the costs of reasonable care, which is
the lower of the actual costs of care or the costs of a reasonable caregiver.

[76]        
The defendants rely on the second factor
referenced in Bystedt – “if the services are rendered by a family
member, they must be over and above what would be expected from the family
relationship” – in arguing that the assistance provided by Ms. Latuillipe to
Mrs. O’Leary, in the weeks following the accident was no more than what
would be expected of a good friend. They also rely on an admission from Ms. Latuillipe
that she did not expect to get paid for her assistance when that assistance was
extended.

[77]        
I do not accept either of these submissions.
While Ms. Latuillipe did not expect to be compensated for the assistance
she extended to her friend, that assistance was considerable. She commuted an
hour in each direction in order to get to Mrs. O’Leary’s home. Over a one
to two month period, she purchased Mrs. O’Leary’s groceries several times,
she helped with her laundry, she cooked a number of meals, she swept and did
other tidying up and she took Mrs. O’Leary out to run errands. There were
no precise time estimates ascribed to these various events, nor was I provided
with any direct evidence of what a third party would charge for such activity
or assistance.

[78]        
I am of the view that $500 is an appropriate
award under this head of loss.

Future Earning Capacity

[79]        
Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 (S.C.), at para. 8, established the following
considerations as being relevant to the assessment of a plaintiff’s loss of
capacity to earn income:

1.     The plaintiff has been rendered less capable overall from
earning income from all types of employment;

2.     The plaintiff is less marketable or attractive as an employee
to potential employers;

3.     The plaintiff has lost the ability to take advantage of all
job opportunities which might otherwise have been open to him, had he not been
injured; and

4.     The plaintiff
is less valuable to himself as a person capable of earning income in a
competitive labour market.

[80]        
It is clear that an award for loss of future
earning capacity is available where the plaintiff is able to continue in the
same employment post-accident and indeed where the plaintiff’s income has
increased since the injury occurred: Ghataurah v. Fike, 2008 BCSC 533,
at paras. 81-82.

[81]        
Nevertheless, this head of loss is intended to
compensate for a loss of capacity which is relevant to potential future
employment. Here Mrs. O’Leary conceded her ongoing difficulties with her
ankle did not in any way impact her current employment. She acknowledged that
those same difficulties would not be relevant to her ability to secure the
employment she aspires to in the field of Emergency Management Planning.

[82]        
One must consider the nature of the impairment
or loss of capacity, here a difficulty of trekking over or moving about on uneven
terrain, on Mrs. O’Leary’s future employment given her skills, education
and ability. The nature of this impairment or difficulty has extremely limited
relevance to Mrs. O’Leary’s employment prospects having further regard to
her age, work history and her plans. No evidence was led of what, if any, job
opportunity, type of employment or prospective employer might now be foreclosed
or otherwise limited to Mrs. O’Leary. Likely, such employment notionally
exists. There must, however, be some real possibility of future income loss. It
cannot be entirely fanciful. The plaintiff has already been compensated for the
non-pecuniary loss associated with her injury.

[83]        
In Steward v. Berezan, 2007 BCCA 150, 64
B.C.L.R. (4th) 152, Donald J.A., writing for the court, said:

[17]   … The claimant bears the onus to
prove at trial a substantial possibility of a future event leading to an income
loss, and the court must then award compensation on an estimation of the chance
that the event will occur: Parypa, para. 65.

[18]   When the
record is examined according to that approach, I cannot see the basis for a
substantial possibility giving rise to compensation for diminished earning
capacity. There being no other realistic alternative occupation that would be
impaired by the plaintiff’s accident injuries, the claim for future loss must
fail.

[84]        
More recently, in Scott v. Erickson, 2009
BCSC 1298, Mr. Justice Smith, in referring to Steward, said:

[100]    The
Court of Appeal has stressed that the consideration of those factors remains
subject to the over-riding burden on the plaintiff of showing that future
income loss is a substantial possibility.

[85]        
In this case, the plaintiff has failed to meet
the onus that lies with her. Accordingly, her claim for future income loss
fails.

Special
Damages

[86]        
The plaintiff seeks $146.12 for various out of
pocket expenses she has incurred. These expenses relate to pain medications,
physiotherapy and massage therapy. I consider these amounts to be reasonable.

Summary
of Damages

[87]        
The plaintiff is entitled to damages as follows:

[88]        
In reaching an award totalling $25,806.12, I
have assessed the evidence and am satisfied that such an award represents a
fair and reasonable amount in this case.

Costs

[89]        
Subject to any submissions by counsel, the
plaintiff is entitled to her costs.

“Voith
J.”