Strata corp not liable for pedestrian hitting arm on sign post

In the recent decision of Paget v. Strata Plan LMS 1953 – Kenwood 2018 BCPC 213, the Claimant occupied a unit in a townhouse complex owned by the defendant strata corporation. On July 21, 2015, the Claimant, Kenneth Paget, then aged 62 years, was out walking when he struck his head on the horizontal arm of a stationary sign post near the driveway entrance to his townhouse complex, known as the Kenwood, located at 5298 Oakmont Crescent, in Burnaby, BC. The Claimant was returning from a walk and, on approaching the entrance to the complex, travelled off of the sidewalk and cut across grass to get to the driveway into the complex. As he was taking this short cut, Mr. Paget heard a male voice yelling from across the street. He turned his head towards his left side in the direction of the yelling and continued walking. Mr. Paget estimated he had his head turned away for at most three seconds. He then turned his head back to its original position and continued walking. Mr. Paget’s head then struck the horizontal arm of the sign post, causing his forehead to bleed, and his body to recoil on impact.

The sign post that Mr. Paget struck is a black metal post located on the grass beside a downward sloping driveway which is an entrance point to the townhouse complex. It was located below the branches of a large coniferous tree. The Claimant allegedly suffered bruising, increased headaches, blurred vision, whiplash and exacerbation of depression, as consequence of striking the sign post. The Claimant brought an action for damages against the strata corporation.

Mr. Paget alleged the sign post was obscured by its dark colour and by the branches from a large coniferous tree. He asserted this constituted a hazard. Mr. Paget claimed the Strata thus breached its statutory duties as the “occupier” of the common property under the Occupiers Liability Act, RSBC 1996 c. 337 (the “OLA”), and is liable to Mr. Paget for his injuries. Mr. Paget also brought his claim against the Strata in negligence.

The Strata admitted it is an “occupier” of the premises at the material time. However, the Strata contended it is not liable for Mr. Paget’s injuries and asserted that it met the duties it owed the public to ensure the premises were reasonably safe under the OLA and at common law. The Strata further contended that the incident was occasioned solely as a result of the Claimant’s lack of due care and attention.

The sign post is used to display to the public, real estate listings for strata lots that are for sale in the complex. There were no real estate listings hanging from the post at the time of Mr. Paget’s accident. Mr. Paget confirmed during his direct testimony and again during cross-examination that he had seen the sign post many times before and was aware of its location. He also confirmed the sign post has remained in the same location following the accident.

The central questions at trial are whether the Strata breached its statutory duties imposed by the Occupiers Liability Act, or was negligent, and if so, whether as a consequence of this breach, the Claimant was injured. Pursuant to section 3 of the Act, the Strata has a duty of care under the OLA and at common law to take reasonable care to ensure the premises are reasonable safe. This duty requires the occupier protect others against an “objectively unreasonable risk of harm”. The law on occupiers is as follows:

1. An occupier premises owes a duty to persons using the premises to take that care that in all the circumstances of the case, those persons will be reasonably safe in using the premises.
2. The standard of reasonableness is not one of perfection.
3. The OLA provides a complete code regarding the duty of an occupier of land.
4. Section 2 of the OLA does not create a presumption of negligence against occupier whenever someone is injured on the premises. A claimant has the burden of proof, on a balance of probabilities, to show some act (or some failure to act) on the part of the occupier which cause the injury complained of before liability can be established.
5. The occupier’s duty is not to ensure that those using the premises will be absolutely safe. It is to use reasonable care to prevent injury or harm from danger that is or ought not to be known.
6. The test is not “whether anything could have been done to prevent the injury using 20/20 hindsight.”
7. In determining liability, reasonable foreseeability of the harm which occurred must be considered.
8. For a risk to be foreseeable, the degree of probability required is that it must be a “real risk”, i.e., “one which would occur to the mind of the reasonable man in the position of the defendant and which he would not brush aside as far-fetched.”
9. The care that must be taken by an occupier differs according to the nature and use of the premises.
10. While prior safe use is not determinative of the issue of occupier’s liability, prior safe use of premises is a relevant factor in determining whether premises are reasonably safe.
11. Corrective or remedial steps taken by the defendants following accident are not to be considered as proof that such steps were required to make the premises “reasonably safe.” Actions taken after the fact are merely factors to be considered in answering the question of whether the area at the time of the accident was reasonably safe.
12. Persons using premises are under a duty to be aware of their surroundings.
13. It is not negligence or breach of any duty not to warn an adult person, not suffering under any disability, of the ordinary risks arising out of the exigencies of everyday life.

The task of the court was to decide whether the Strata took reasonable care to ensure that its premises were reasonably safe. This is a question of fact based on the particular circumstances of this case. After reviewing all of the evidence, the Court found that the Strata met its duties under section 3 of the OLA and at common law.

In reaching this conclusion, the Court considered the testimony that there had been no prior reports of injury involving the sign post. While such evidence is not conclusive, it is an indication the area was “reasonable safe” for pedestrians. The Court found that on the totality of the evidence, there was nothing inherently dangerous about the location of the sign post and found that the sign post was “there to be seen”. The sign post was a stationary object set back from the sidewalk beside the driveway. Although the horizontal arm of the sign post was partly obscured by the branches of the coniferous tree, the vertical post could be seen from the photographs taken by Mr. Paget in July and August, 2015.

The Court concluded that Mr. Paget had been walking quickly. He travelled off of the sidewalk onto the lawn to “cut the corner” to get to the driveway to his townhouse a little faster than if he remained on the sidewalk. The route of travel chosen by Mr. Paget was not a route that the Strata would expect pedestrians would take. Mr. Paget turned his head to his left in response to a male voice he heard yelling across the street. He did not stop. The Court found that Mr. Paget was not paying attention to where he was walking when he collided into the horizontal arm of the sign post. Accordingly, the Court found that the accident was caused solely by Mr. Paget’s inattention to his surroundings. The claim was thus dismissed. Having dismissed the claim, the Court found it unnecessary to assess damages.