12 Aug Store Not Liable For Customer Assault

The Plaintiff in Tanaka v. London Drugs Limited, 2019 BCSC 1182, was physically assaulted by another customer while standing at the customer service desk of a London Drugs store. The Plaintiff sued London Drugs for the injuries he suffered in the assault, in negligence and under the Occupiers Liability Act, R.S.B.C. 1996, c. 337 [OLA].

The position of London Drugs was that a retail store does not owe a duty of care, either at common law or under the OLA, to prevent a random and sudden assault of a customer by another customer. Rather, its duty is to ensure that persons using its premises are reasonably safe, having regard to the type of premises and the activities taking place.

An occupier’s duty of care is set out in s. 3 of the OLA:

(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.

Although s. 3(2) of the OLA extends the occupier’s duty of care to the “conduct of third parties on the premises”, this does not mean the occupier is vicariously liable for the conduct of third parties. Liability arises only if the occupier fails to take the reasonable care required in the circumstances in relation to the conduct of a third party. Furthermore, liability will only arise if the harm suffered was foreseeable.

The Plaintiff advanced three theories of liability:

(1) That London Drugs staff were negligent in failing to prevent the assault: The judge concluded that there was no negligence on the part of the store employee which would have given rise to vicarious liability for London Drugs.  She also found the store’s workplace safety policies were reasonable in the circumstances, and followed in this particular case.

(2) That London Drugs staff failed to warn him about the risk presented by the assailant: The judge held that London Drugs did not breach its duty in this regard. No admissible evidence was adduced at trial to establish that the assailant had been in the store earlier that day. Even if he had been, this did not establish that he presented a foreseeable risk of physical harm to the Plaintiff.

(3) That London Drugs staff failed to detain the assailant so that he could be identified, thus permitting the Plaintiff to bring an action against him for damages: The judge felt that this amounted to imposing a duty on London Drugs to prevent the Plaintiff from suffering economic loss, if he was unable to recover tort damages from the assailant. Canadian courts have rejected the existence of such a duty of care.

The judge went on to say that there was a further reason why a duty to detain should not be imposed on London Drugs in these circumstances. Such a duty would have required London Drugs staff to risk their personal safety by attempting to detain a violent individual for the sole purpose of protecting the Plaintiff’s economic interests. The judge found it inconceivable that the law would recognize a duty of care that subordinated the Defendant’s personal safety to the promotion of the Plaintiff’s economic interests.

The judge concluded that although the assault of the Plaintiff was an exceedingly unfortunate event, the mere fact that it occurred at a London Drugs store was insufficient to establish liability.