If you are injured while “playing around” on provincial property, can you sue for your injuries? What if the property is severely corroded, and but for its condition, you wouldn’t have been injured?
Yesterday’s judgment from the British Columbia Supreme Court (Mackey v. British Columbia, 2016 BCSC 1333) pertains to a high school student from Phoenix who was injured while visiting Victoria on a band trip. Eighteen-year-old David Mackey hopped up on a cement baluster, then swung from a lamp post on top of the baluster. The lamp post was severely corroded, and the skirt of the lamp post had never been bolted to the baluster. As he was swinging on the lamp post, it gave way, and he fell two storeys to a concrete walkway below – suffering several injuries including a brain injury.
The plaza where the lamp post was located was owned and managed by the Provincial Capital Commission (“PCC”). The trial judge was tasked with assessing liability for the severe injuries he suffered. In applying the “but for” test, Mr. Justice Macintosh determined that the cause of the accident was shared:
Conclusions About the Cause of the Accident
[39] From the evidence above, I reach the following conclusions.
[40] The lamp post was severely corroded when David Mackey fell. The lamp post had never been inspected or maintained to see that it was intact. The annual painting did little or nothing to protect it because the corrosion was allowed to continue unchecked, both under the skirt and immediately above it. Further, the skirt of the lamp post was never bolted to the baluster, which would have provided the necessary support.
[41] But for the corroded state of the lamp post, and but for the skirt not having been bolted, I find that the accident probably would not have happened. What probably happened was that as David Mackey was swinging around the lamp post, the lamp post came loose and gave way. Probably, the lamp post coming loose and giving way caused David Mackey to fall to the concrete walkway below. I adopt here what McLachlin C.J. wrote for the majority at paras. 9 and 10 in Clements v. Clements, [2012] 2 S.C.R. 181:
[9] The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury. [Citations omitted.]
[10] A common sense inference of “but for” causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss. [Citations omitted.]
[42] Also, however, it is obvious that but for David Mackey getting up on the baluster, and swinging around the lamp post, the accident would not have happened
He then turned to apportioning who was more blameworthy for the incident. He referred to the case of Cempel v. Harrison Hot Springs Hotel Ltd., 1997 CanLII 2374 (BC CA), as providing particular guidance on the legal framework to apply in a very fact-specific analysis that the “apportionment should be on the basis of the degree to which each person was at fault”… not on the basis of the degree to which each person’s fault caused the damage. In weighing all of the evidence, he concluded that David Mackey was 65% at fault, and the provincial capital commission was 35% at fault:
[60] When applying the provisions of the two statutes, the Occupiers Liability Act and the Negligence Act, as they have been considered in Cempel, Bendzak, Sall and Paquette, cited above, I find the PCC to be 35% at fault and David Mackey to be 65% at fault for the accident. David Mackey was nearly 18. He mounted a safe railing where there was a dangerous drop below. He had probably also heard Ms. Arner’s warning to Ryan Ramsay. On the other hand, the PCC had neglected entirely the adequate, or indeed any, maintenance of the lamp post, apart from subcontracting an annual paint job. The lamp post, on top of the railing, was its own accident waiting to happen. As noted earlier, it could have been pushed over by a force of only 12.5 pounds.
The school chaperone’s were named in the lawsuit as well, but were found not to be liable, as their conduct complied with the standard of care expected of them. David Mackey was awarded $4.5M for his injuries – largely because he planned to become an orthopaedic surgeon and his IQ and academic performance indicated he had the capacity to do so before he was injured. Now, nine years post-injury, he works attaching cabinet handles to cabinets.
The amount awarded will be recoverable against the PCC after reducing it by 65% for the percentage of blameworthiness apportioned to the plaintiff for his injuries.
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