Park bench collapse: strata not liable
In Hamilton v. The Owners, Strata Plan VIS3782, 2018 BCSC 1585, the plaintiff was injured in a park bench collapse. He fell while getting up from a wooden bench he had been sitting on. An armrest broke away from the bench when the plaintiff put his weight on it. That caused him to lose his balance and fall to the ground, breaking his hip. The bench was located on the grounds of Broadmead Terrace, a five-building condominium complex in Saanich, British Columbia, owned by the defendants, Owners of Strata Plan VIS3782 (the “Strata”). The issue is whether the Strata is liable for the plaintiff’s injuries, either under the Occupiers Liability Act, R.S.B.C. 1996, c. 337 [OLA] or at common law.
The park bench collapse occurred on December 14, 2015. The 75 year old plaintiff had gone for a walk while his wife was at a choir practice. The plaintiff said the bench looked old, with moss growing on the backrest, but did not appear unsafe. After the plaintiff had been sitting on the bench for about half an hour, the weather improved and he decided to resume his walk. He said he put his hand on the right armrest to support his weight as he got to his feet. The armrest then broke away and the plaintiff said that unexpected loss of support put him off balance. His body twisted to the left and he fell to the ground.
The plaintiff relied on two experts on wood products who have not directly inspected the bench and had only seen photographs of it in its repaired condition. They made the obvious point that wood left outdoors for several years in a climate such as British Columbia’s is subject to deterioration and decay, and specific regard to wooden benches, that decay is most likely to occur where the armrest connects to the bench because joints and fasteners trap water within the wood. One of the experts said that with regular cleaning and maintenance, wooden surfaces can have a useful life expectancy of approximately 25 years, but a lack of maintenance can shorten that by up to 10 or 15 years.
The plaintiff’s experts opined that because wooden surfaces exposed to the elements are subject to decay, they require regular inspection and maintenance. The Strata argued that it had an adequate, albeit informal system of inspection that had not previously revealed any problem with the bench and the Strata Council had received no complaints about it. There is no regular inspection or maintenance done on any of the benches. Periodically, they are tested, shaken, pulled, rattled, banged, sat in by the garden committee. But there is no regular maintenance program. The benches are used extensively and intensively during the summer months by residents who point out any deficiencies that might be observed.
Dr. Darrel Nicholas, a professor in the Department of Sustainable Biomaterials at Mississippi State University, has conducted research in all aspects of wood bio-deterioration and preservation. He opined that areas where the armrest connects to the bench would be most susceptible to decay. Dr. Nicholas opined in a report that wood structures exposed to the elements need to be inspected periodically, with particular attention to areas such as armrests that tend to trap water. He opined a reasonable inspection would include a visual and probing inspection of joints as well as putting weight on the load bearing areas. The plaintiff’s other expert was Matt Anderson, a wood science consultant. He opined that regular inspection of connections, such as those between the armrest and the bench, is important and should be done at least once a year.
The Court addressed two questions in determining whether the Strata was liable. First, the Court found there is evidence that this type of bench, when exposed to the elements on a long-term basis, does deteriorate over time and that the bench broke at the very spot where the deterioration is most likely to occur and that there was some defect or deterioration in the wood that caused the armrest to break off when the plaintiff put his weight on it.
The second question is whether the presence of that defect amounted to an objectively unreasonable risk of harm, i.e. park bench collapse. That question depends on whether the Strata knew or reasonably should have known about it, and whether a reasonable owner, knowing about the defect, would have repaired or removed the bench before the date of the plaintiff’s fall. The standard is one of reasonableness, not perfection.
The court found that the evidence is clear that the Strata Council had received no complaints about the bench and was not aware of any defect that could lead to park bench collapse. The evidence of strata resident Ms. Lennard is that benches were inspected regularly (by shaking the benches) to ensure they were secure and in good condition. That inspection was undoubtedly more cursory or less exacting than what the plaintiff’s experts suggest, but there is no evidence that residents of a strata who volunteer to serve on a garden committee had or should have had the same knowledge as experts in wood products.
Ultimately, the court found that the standard of inspection put forward by the plaintiff was one of perfection rather than reasonableness. But even if that standard is applicable, the plaintiff’s expert, Mr. Anderson’s opinion was that the detailed inspection be done only at least once a year. The logical time to perform an annual inspection would have been in the spring—before the period of most intensive use and immediately after the season of greatest exposure to rain. There is no evidence from which it can be inferred that the defect that caused the park bench collapse in December 2015 would have been present or detectable on an inspection six to eight months earlier. Ultimately the court found that the plaintiff had failed to prove that the bench posed an unreasonable risk that the defendants knew or should have known about and the action must be dismissed with costs.
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