can some one help me to summarize this case by using FILAR for structure,and discuss the legal rules that applied to each issue and the reasons for the decision.

This is the case below

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Wright v McArthur,

2005 BCSC 1797

Date: 20051228

Docket: S41058

Registry: Nanaimo

Between:

Timothy Barry Wright

Plaintiff

And

James McArthur

Defendant

Before: The Honourable Mr. Justice Lander

Reasons for Judgment

Counsel for the plaintiff:

A. de Turberville

Counsel for the defendant:

M.E. MacKenzie

Date and Place of Hearing:

25 November 2005

Nanaimo, B.C.

[1]This is an application under Rule 18A brought by the defendant against the plaintiff for an order that the claim of the plaintiff be dismissed.

[2]The plaintiff did not object to the determination of this matter by way of Rule 18A.

[3]On May 12, 2002, the plaintiff Mr. Wright, his son, Chad, and Chad's girlfriend, Cathy Davidson, dropped by the defendant, Mr. McArthur's house for a visit.This house is in Port Alberni and situated on Sproat Lake.In the year 2002 Mr. McArthur had a 16 foot K & C Corba speed boat which he would dock at his next door neighbour's house when using it on Sproat Lake.

[4]Mr. McArthur deposed that he had made extensive renovations to the house since he purchased it.In or about April or May 2002 he installed a deck off the lower floor and off the main level of the home.

[5]Mr. McArthur deposed that both the upper and lower decks were located at the rear of the house overlooking the lake.The upper deck is situated approximately 8 feet above the lower deck.

[6]Mr. McArthur further deposed that on May 12^th, 2002, he had not yet installed a railing on either the lower or upper decks.It was his plan to install railings but he had not installed any sort of temporary railing because he did not want to put any unnecessary holes or punctures in the fibreglass which he had laid on the deck.

[7]While Mr. McArthur was out on his speed boat with a friend and passing his home he noticed that there were people on the lower deck.He went to the house and greeted the plaintiff, the plaintiff's son Chad and Chad's girlfriend.These people had arrived unannounced.The defendant then took the plaintiff, his son, Chad and girlfriend on a tour of the house.It is agreed that after the tour everyone went to the upper deck and were sitting on chairs which were placed against the wall of the house.It is further agreed that Mr. McArthur warned these persons to be careful as there were no railings on the deck.

[8]After sitting on the deck for approximately 1 to 2 hours, the defendant took the plaintiff's son and son's girlfriend on a ride in his speedboat.The plaintiff did not go on the boat ride.At this point the evidence differs between the plaintiff and the defendant as to whether prior to departure for the boat ride the plaintiff said he wanted to take a picture of his son and his son's girlfriend in Mr. McArthur's boat.The plaintiff says that he told the defendant he was going to try doing that,however the defendant says that the plaintiff did not tell him.

[9]While the defendant and the others were out in the boat the plaintiff went to his vehicle to get his camera.As the boat came close to the dock the plaintiff got up to take a picture.He says he was holding on the camera with both hands and that there was a branch in his way so he stepped to the side, moved the branch, the branch remained in his way and he took another step to the side at which time he fell off the deck and was injured.

[10]In his affidavit, the plaintiff deposes that he had been warned that there were no railings and he states that he never forgot that there were no railings on the deck.

[11]The defendant takes the position that the plaintiff is solely liable for his injuries.

[12]The plaintiff acknowledges he is contributory negligent because he took a step that resulted in his fall while he was trying to take a picture and at that time he remembered there were no guardrails on the deck.However, it is his view that primary responsibility rests with the defendant because the defendant should have put the deck "off limits" and the defendant's failure to do so was not reasonable. He argues that the defendant is responsible for the following reasons:

The defendant breached the BCBuilding Codeby not having a guard rail and this should make the defendant liable.

• The defendant breached theOccupiers Liability Act.

[13]The issues to be decided on this application are as follows:

1.Does the breach of the BCBuilding Codeestablish that the defendant is liable?

2.Did the defendant breach theOccupiers Liability Act?

a. Was there an assumption of risk by the plaintiff?

b. Were the defendant's actions reasonable in the circumstances? Should the deck have been placed "off limits"?

3.If there is a breach oftheOccupiers Liability Acthas the plaintiff established causation?

4.If both the plaintiff and defendant are liable how should liability be apportioned?

Issue # 1Did the Defendant's breach of the Building Code, I find that it does not automatically render him liable.

[14]The evidence is that the deck the plaintiff fell from was still under construction and the railings that are required for a deck of that height pursuant to the BCBuilding Codehad not yet been installed.

[15]The plaintiff's submission on this issue is that the defendant's breach of theBuilding Codeis sufficient to make the defendant primarily liable.

[16]Case law in BC suggests that the mere breach of theBuilding Codeis not sufficient to attract liability and establish negligence(Kerriaff v. Gunerud[1989] B.C.J. No. 2, andAllen v. Redford Motor Ltd[1989] B.C.J No. 2221) but it may be a standard by which construction standards adopted may be measured (Dorsey v. Austrian ChaletIn[1992] B.C. J. No. 1766).(Only one of these casesDorseywas cited by counsel, it was cited by counsel for the plaintiff).

[17]The defendant cannot be liable solely on the basis of a breach of theBuilding Code.The plaintiff still needs to prove that the defendant breached the obligations under theOccupiers Liability Act.

Issue # 2Did the defendant meet its obligations under theOccupiers Liability Act

[18]The defendant's position is that the warning he gave to his guests to be careful because the deck did not have railings met his obligations to take reasonable care to ensure the safety of the plaintiff as required under theOccupiers Liability Act. The defendant's position is that the plaintiff was the author of his own misfortune.

[19]The plaintiff contends that he did not willingly assume the risks of injury from being on the deck and that this defence was specifically rejected by theSupreme Court of Canadadecision inWaldick v. Malcolm1991 CanLII 71 (SCC),83 D.L.R. (4^th)114 (S.C.C.).

[20]Further, the plaintiff argues that the warning given by the defendant was not sufficient to relieve the defendant from his duty under theOccupiers liability Actto take all care in the circumstances to see that Mr. Wright was reasonably safe. He argues that the defendant should have shown the guests the deck through the sliding glass door and then refused to take them onto the deck, and then put the deck "off limits".In support of the proposition that the defendant had an obligation to put the deck "off limits" the plaintiffcitesChretien v. Jensen[1998] B.C.J. No. 2938.

[21]I find that the manner in which the plaintiff has laid out his argument improperly combiness. 3(1)and3(3)of theOccupiers Liability Act. Since 3(1) and 3(3) of theOccupiers Liability Actplace very different obligations on an occupier I have set out the relevant sections of theOccupiers Liability Actand the flaws I see in the plaintiff's argument.

[22]The relevant sections of theOccupiers Liability Actares. 3(1)-3(3):

3(1)An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person's property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.

(2)The duty of care referred to in subsection(1) applies in relation to the

(a)condition of the premises,

(b)activities on the premises, or

(c)conduct of third parties on the premises.

(3)Despite subsection (1), an occupier has no duty of care to a person in respect of risks willingly assumed by that person other than a duty not to

(a)cause danger with intent to do harm to the person or damage to the person's property, or

(b)act with reckless disregard to the safety of the person or the integrity of the person's property.

Voluntary Assumption of Risk s.3(3)Occupiers Liability Act

[23]The plaintiff focuses a significant part of his submission on his assertion that he did not voluntarily "assume the risk" of being on the balcony. In support of this submission he cites the Supreme Court of Canada'sdecision inWaldick. That decision dealt with the interpretation of section 3 and 4 of the OntarioOccupier's Liability Actwhich is very similar to s. 3 of the British ColumbiaOccupier's Liability Act.

[24]InWaldickthe defendant argued he should not be liable as the plaintiff had "willingly assumed the risk". The issue before the Court was what was meant by the terms "risks willingly assumed." In its decision, the Court said that "risk willingly assumed" meant more than mere knowledge of the risks. The Court said that "risks willingly assumed" was intended to embody and preserve thevolentidoctrine and mere knowledge of the risks did not constitute "risks willingly assumed." The Court was clear that in order for thevolentidoctrine to apply the plaintiff would have to have assumed both the physical and legal risks, and that there must be clear proof that the plaintiff assumed the risks.

[25]Given the similarities between the Ontario and the British Columbia legislation it is safe to assume that the term "risk is willingly assumed" contained in s. 3(3) of the British ColumbiaActis also a codification of thevolentidoctrine.

[26]I find that there is no evidence to support a claim that the plaintiff "willingly assumed the risk" under s. 3(3).However, a review of the defendant's documents shows that the defendant is not focusing his argument on the issue of voluntary assumption of risk.

[27]Had there been a voluntary assumption of risk the defendant would absolutely have no liability as s. 3(3) of the British ColumbiaActprovides that where a "risk is willingly assumed" no liability can be attributed to an occupier for any act or omission unless the occupier creates a danger withintent to do harmor hasa reckless disregard to the safety of the person or the integrity of their property. (emphasis mine).

[28]While the plaintiff I have found did not "willingly assume"the risk unders. 3(3)of theOccupiers Liability Act, the plaintiff still has the onus to establish that the defendant failed to meet its obligations under s. 3(1) of theAct.

[29]Under s. 3(1) of theActthe duty of the occupier is to take care to see that in all the circumstances the plaintiff is reasonably safe using the premises.The occupier however is not the insurer and a standard of perfection is not required (Premji v. Westfair Foods2000 BCPC 35 (CanLII),2000BCPC0035affirmed[2001] B.C.J. NO. 319).

[30]The uncontradicted evidence of both the plaintiff and the defendant is that the defendant warned everyone that the deck was still under construction and there was no railing on the deck. In fact in his affidavit the plaintiff he states that the defendant said "come and sit down and just be careful there are no railings" (para 12 of Mr. Wright's affidavit).

[31]The defendant submits that he met his obligations under theOccupiers Liability Actby warning the plaintiff that the deck had not railings and placing the chairs right in front of the door and as far away from the edge of the deck as physically possible.

[32]While the plaintiff acknowledges that the defendant did warn everyone about the lack of the railing, the plaintiff argues that the warning given by the defendant about the lack of railing was not sufficient to relieve him from his duty under theOccupier's Liability Act. He argues that the defendant should have shown them the deck through the sliding glass door and then refused to take them onto the deck and then put the deck "off limits" (para 23 plaintiffs brief of argument). In support of this argument he cites the majoritydecision inChretien v. Jensen[1998] B.C.J. No. 2938in which the Court stated that that to meet the duty under theOccupiers Liability Actit may be appropriate to put certain property off limits.

[33]It is true that inChretienas well as an obitercomment inWaldickthe Courts have suggested that to meet the duty may be appropriate to put certain property off limits in certain circumstances order to meet the test of exercising reasonable care.

[34]I find that the plaintiff's argument that there can be a duty to place certain property off limits would imply a higher standard of reasonableness of care pursuant to s 3(1) of theOccupiers Liability Act.

[35]The concern that I have just commented on reflected recent judgements from the BC Courts including the judgement of the BC Court of Appeal inDuddle v. City of Vernon2004 BCCA 390(B.C.C.A.).InDuddlethe issue was whether the City was liable for the injuries sustained when the plaintiff, Mr. Duddle, dove off a pier that was maintained by the City of Vernon.The pier was not meant to be dived from.There were numerous signs on and around the pier stating that the water was shallow and diving was not allowed.Despite these warnings Mr. Duddle dived off the pier and was rendered a quadriplegic.Mr. Duddle claimed against the City on the basis that they violated s 3(1) of theOccupiers Liability Actin that they failed to make the premises reasonably safe.

[36]The trial judgeinDuddlefound the city 25% liable even though the City had posted warnings. In coming to his decision, the trial judge quoted part ofthe judgment inWaldickin which the Court said that an occupier might want to put part of his property off limits rather than make it safe.In looking at all the circumstances, the trial judge found the municipality liable on the bases that it "did not try anything and could have done to prevent this accident in all of the circumstances."

[37]The Court of Appeal held that the trial judge made an error of law.The Court of Appeal found that the test applied by the trial judge ("whether the city did all it could do") effectively fixed the City with a standard of perfection and this was an error of law, the standard in Occupier's Liability cases is the standard of reasonableness.

[38]Further the Court of Appeal found that the City had acted reasonably and that the sole reason for the accident was Mr. Duddle's failure to take proper care and found the plaintiff solely liable.

[39]In the case at bar, the plaintiff's argument is very similar to that of the plaintiff inDuddle.The plaintiff appears to be suggesting that the defendant McArthur had a duty to ensure he was safe by denying access to the deck rather than an obligation to ensure he was reasonably safe.To accept the plaintiff's argument that the deck should have been placed off limits would, I find, be the same error of law that the trial judge madeinDuddle.It would require perfection on the part of the defendant rather than reasonable care.

[40]The decisions inChretienandWaldickare distinguishablefromDuddle.InChretienandWaldickthe plaintiffs were given no warning of any danger whileinDuddleand the case at bar, the plaintiffs were warned of a danger, yet chose to engage in an activity that exposed them to that very danger.

[41]The Courts, I find, have been clear that there is an obligation on invitees and others to take "proper care" for their own safety (Duddle).I find that on the evidence before me does not support the conclusion that the plaintiff took proper care of himself given that he was warned and knew that there were no railings on the deck.

[42]On the issue of reasonableness and whether an occupier has acted reasonably the courts have held that there are many factors to be considered and the factors depend on the circumstances of the case.

[43]In the case at bar the relevant factors are; (1) the fact that the plaintiff and the others were aware that the deck was under construction, and were aware that there were no railings on the deck, (2) it was still daylight, ( 3) the plaintiff was not intoxicated, and (4) the plaintiff was not paying attention to where the deck ended when he got up to take the picture despite knowing that the deck had no railings.

[44]On the evidence, I find that the defendant's actions in issuing the warning of the lack of railings before permitting people to sit on the deck, was reasonable.I find that to accept the plaintiff's submission that the defendant had to do more, such as put the deck off limits, is holding the defendant to a standard of perfection not a standard of reasonableness.

[45]I find that the defendant's actions in this situation were reasonable and he should be found to have not breached his duty of care under theOccupiers Liability Act.

[46]I find that the plaintiff's action is dismissed with costs to the defendant on Scale 3.

"C.R. Lander, J."

The Honourable Mr. Justice C.R. Lander