Injured party needn’t say exactly what she slipped on to establish liability
In Robinson v. 1390709 Alberta Ltd. 2017 BCCA 175, an action involving a slip and fall at a restaurant, the British Columbia Court of Appeal dismissed the appeal of a restaurant holding that the restaurant failed to demonstrate that the trial judge committed any palpable and overriding error.
The trial judge found the restaurant 100 per cent liable for the accident, finding that the customer gave credible, reliable evidence that there was a foreign item or substance on floor that created a potential hazard for customers, that restaurant’s employee was not credible, that floor’s colour and texture made it difficult to see such items or substances, that the restaurant failed to establish it had reasonable cleaning regime or that it was implemented that day, and that the restaurant made no effort to determine state of floor at time of incident.
With respect to customer’s inability to say exactly what she slipped on, trial judge distinguished the case from one in which court ruled that law was clear that court could not speculate on condition or hazard causing the slip and fall and that the plaintiff was required to prove the condition or hazard causing it and that the condition or hazard existed due to breach of duty by defendant. The trial judge noted that, in case at bar, the customer’s observation of substance on floor being “noticeably different than water and having distinct consistency of food item” was not “speculation or theorizing”, and that the customer’s observation was consistent with a 1990 decision where the court found the particular type of debris less important for the occupier to concern himself with than the debris generally creating the risk of the slip and fall.
The Court held at paragraphs 6 to 8:
6 In the case at bar, the plaintiff was unable to say exactly what she had slipped on. The defendant thus argued that it was insufficient for her to say she had slipped on “something” that was slimy and that the court should not speculate about what had caused her fall. On this point, the defendant relied on Slee v. Canada Safeway Ltd., 2008 BCSC 107 (B.C. S.C. [In Chambers]), in which the plaintiff had assumed that she slipped on water in a Safeway store on a rainy day. The Court ruled that:
The law is clear in this area, the Court must not speculate. The plaintiff must prove: first, what condition or hazard caused her slip and fall; and, second, that the condition or hazard existed due to a breach of duty by the defendant. [At para. 31.]
7 The trial judge in the case at bar distinguished Van Slee, however, observing that Ms. Robinson was able to state that the substance on the floor was “noticeably different than water and that it had the distinct consistency of a food item.” He did not regard this as “speculation or theorizing” on the plaintiff’s part and quoted the following passage from this court’s decision in Sinow v. Maple Ridge Square Shopping Centre Ltd.,  B.C.J. No. 743 (B.C. C.A.):
. . . It is not a particular type of debris that the occupier must concern himself with, rather it is debris generally which creates a risk of a slip and fall such as happened here that he must concern himself with. The trial judge found as a fact, and this is not challenged by the appellant, that the respondent slipped and fell on a leaf or leaves; or to put it another way she slipped and fell as a result of a form of debris on the floor in the common area that created a risk of harm. [At para. 5.]
Gaul J. also noted that the colour and texture of the floor in the restaurant made it hard to see items that may have been dropped on it, and that from the vantage point of someone working behind the food preparation counter, it would have taken the extra effort of leaning over the counter to examine the entire floor. (At para. 23.)
8 On appeal, the defendant submits that the judge erred in resorting to speculation and in his interpretation of Sinow. I cannot agree. As I read the passage from para. 5 quoted above, the Court was not referring to the plaintiff’s burden to prove causation, but to the proof of a foreseeable risk with which an occupier must concern himself. I am not persuaded the judge erred in law in either of the ways asserted by the defendant.