Property Owner’s Duty of Care
The Occupiers Liability Act establishes responsibility upon property owners and occupiers to ensure their premises are safe and free of hazards. It creates a duty of care which is summarized as follows:
- The duty of care is to take reasonable care in the circumstances to make the premises safe
- The duty of care does not require property owners to ensure that persons using the property will be absolutely safe
- The duty of care differs according to the nature and use of the property
- The duty of care does not require removing every possibility of danger
- The test is one of reasonableness, not perfection.
Injured Claimant Must Prove that a Hazard Existed and Caused Injury
There is no presumption of fault on behalf of a property owner when a person is injured on his/her property. An injured claimant must point to some act or hazard on the part of the property owner that caused the injury. If proven, the property owner will be liable (at fault) for the injury and compensation will be awarded.
Liability on behalf of a Restaurant was considered in Fulber v. Browns Social House Ltd. 2013 BCSC 1760.
The injured claimant suffered a broken ankle requiring three surgeries when she slipped and fell at a Browns Social House restaurant.
The seriousness of the ankle injury was not in dispute at trial. What was in dispute was whether a hazard existed that caused the slip and fall which the restaurant should have safeguarded against.
While the injured claimant’s evidence was that she slipped on something, there was no proof of what she slipped on. She did not notice anything on the floor before or after the fall. She also did not notice any dampness on her shoes or clothing after the fall. Furthermore, the restaurant owner attended to the injured claimant after the fall and he did not notice anything on the floor or on her clothing. No spills in the area of the fall were reported by staff or other patrons.
The trial judge dismissed the claim because the injured claimant failed to prove the existence of the hazard that caused the fall.