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Don’t be crabby about an adverse trial decision…appeal!

November 2014 Fillmore Riley LLP, Manitoba

British Columbia Court of Appeal takes interventionist approach to standard of care finding in Agar v. Weber.

The British Columbia Court of Appeal recently considered the interaction between the old common law of occupiers liability, the Occupiers Liability Act (“OLA”), and the common law of negligence in Agar v. Weber, 2014 BCCA 297.  The insufficiency of the trial court’s reasons played a central role in the decision.

The facts of the case were straightforward.  The plaintiff, Dr. Agar, and the defendants, the Webers, were neighbours.  The defendants’ property was on the water.  Affixed to their dock was a homemade crab shelling device fabricated by Mr. Weber (the “device”).  The device was constructed of two pieces of steel welded together in a “T” shape, one edge of which extended beyond the dock by one quarter of an inch (the “outboard edge”).  The outboard edge had a bevelled underside, which was used to brace the crab for cleaning.  Although Mr. Weber testified that he did not intend for this edge to be sharp, the trial judge found that it was.

Following on Mr. Weber’s invitation, Dr. Agar helped himself to three crabs which had been caught by Mr. Weber.  He then proceeded to clean the crabs using the device.  Dr. Agar cleaned the first two crabs without incident.  In order to shell the third crab, Dr. Agar had to push much harder against the device than he did with the first two.  While doing so, the shell gave way and he lost his balance and cut himself across the entirety of his right wrist.

The trial judge concluded that the bevelled outboard edge was sharp and concealed in that it could not readily be seen by someone using the device.  He also found that a sharp edge is not necessary to shell crabs.  Based on these findings, the trial judge concluded that the device was an “unusual danger.”  This term is generally reserved as part of the lexicon relevant to the old common law test of occupiers liability and is significant because a finding of “unusual danger” would invoke the rule in Indermaur v. Dames (1866), L.R. 1 C.P. 274 (Eng. C.P.).  This rule serves to shift the burden of proof to the defendant to show that he took reasonable care to protect the plaintiff from the unusual danger.

Ultimately, the trial judge held the Webers liable for failing to warn Dr. Agar about the concealed sharp edge, which failure constituted a breach of the standard of care, both in negligence and under the OLA.

In the Court of Appeal, the Webers argued, among other things, that the trial judge conflated the common law and statutory tests for occupiers liability.  Smith J.A., for a unanimous Court, confirmed that the statutory duty of care imposed on Mr. Weber under s. 3 of the B.C. OLA superseded the former common law test.  The statutory duty required Mr. Weber to “take care that in all of the circumstances of the case Dr. Agar would be reasonably safe when he used the device” (para. 28).  Justice Smith also held that the standard of care imposed by the common law of negligence was identical to the standard of care demanded by the OLA.  Both standards require occupiers to “protect others from an objectively unreasonable risk of harm” (para. 30).

The main issue for trial judge’s determination was, therefore, whether the device posed an objectively unreasonable risk of harm to Dr. Agar.  The Court of Appeal held that the trial judge’s use of the term “unusual danger” to describe the device was not for the purpose of invoking the rule in Indermaur v. Dames and so did not, on its own, amount to an error of law in determining this issue.  Smith J.A. held, however, that the trial judge’s use of this term “may have caused him to limit his analysis of whether the device posed an objectively unreasonable risk of harm” (para. 51).  Specifically, Smith J.A. observed that the trial judge’s reasons lacked any reference to various factors pertinent to a determination of whether the device posed an objectively unreasonable risk of harm:

It is not clear to me that the judge properly considered the test for reasonableness, common to both causes of action [liability under the OLA and negligence].  An application of the reasonableness test, in my view, would require an analysis as to the degree of sharpness of the outboard edge; the nature of risk the device might pose in its typical use; whether anyone else had previously been injured using the device; and whether Mr. Weber could have reasonably foreseen the manner in which Dr. Agar injured himself, especially given that he never intended the device to be sharp, had tested it for sharpness, and everyone agreed that none of the methods for cleaning crabs required a sharp edge (para. 53).

To summarize, whether the device amounted to an unreasonable risk of harm, the judge must have assessed 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 (para. 57).

The Court of Appeal concluded that the trial judge’s failure to consider these factors in his reasons constituted an error of law, rendering his conclusion that the outboard edge of the device created an objectively unreasonable risk of harm unsound.  The Court then proceeded to conduct its own analysis of some of these factors and reached the opposite conclusion.  It therefore allowed the appeal and dismissed the action.

The Agar decision is of interest to counsel defending occupiers liability claims for two reasons.  First, the decision should impress upon counsel the importance of ensuring that their argument at trial, as well as the evidence marshalled in support thereof, deals with all of the factors influencing the standard of care analysis enumerated by the Court of Appeal in paragraph 57, quoted above.  A failure to do so poses a risk that the judge will be unable to explicitly consider these factors in his/her reasons, thus creating a basis for appeal.  Indeed, the mandatory language used by the Court in paragraphs 53 and 57 (e.g. “[a]n application of the reasonableness test…would require an analysis of…”) suggests that appellate courts should overturn trial decisions which do not expressly address the factors set out in paragraph 57.

Second, Agar provides an example of appellate court intervention into what is, facially, a question of mixed fact and law in circumstances where the trial judge’s reasons are deficient.  At paragraph 52, the Court of Appeal acknowledged, “[a] finding of negligence involves questions of mixed fact and law and should not be interfered with, absent an extricable error of law in the characterization of the legal standard or its application.”  The Court reached its own conclusion, however, that what transpired in this case was nothing more than an unfortunate accident after concluding that the trial judge misdirected himself as to the test for reasonableness in negligence and under the OLA.  The misdirection was based on the fact that the trial judge did not expressly consider the factors enumerated in paragraph 53.  Thus, despite the deferential standard typically commanded by trial findings of breach of the applicable standard of care, Agar suggests that defence counsel should be eager to appeal said findings where the judge has failed to expressly address, in his/her reasons, one or more factors which ought to have influenced (or did influence, albeit impliedly) the analysis.

It remains to be seen whether the B.C. Court of Appeal’s stringent approach will be accepted by other appellate courts across the country.  As the plaintiff has now filed an application for leave to appeal to the Supreme Court of Canada, further guidance on this issue may be forthcoming.

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