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Liability for slip and fall

If I slip on a bathroom floor at a business, will the business or their cleaning contractor be liable? What if I am unsure about what caused me to slip?

In a decision last week out of the British Columbia Supreme Court (Dudas v. Ikea Ltd., 2016 BCSC 826), a woman sued Ikea and their cleaning contractor for injuries she sustained when she slipped on a bathroom floor at Ikea. She had been using the facilities, and as she was leaving the stall, she slipped and fell.

In her fall, she injured her sternum and breast. She had breast implants and when she attended the hospital after the fall, she discovered that her left breast implant had deflated. The medical opinion was that this was caused by the fall, and given the age of the implants, she was recommended to replace both – which she did.

In his decision, Mr. Justice G. C. Weatherill first summarized the standard of care expected of occupiers such as Ikea and the cleaning contractor:

[31]         The applicable standard of care expected of an occupier is one of reasonableness, not perfection.  The duty is to use reasonable care to prevent injury or damage from danger which is known or which ought to be known: Ball v. GAP (Canada) Inc., 2001 BCSC 1106, aff’d 2002 BCCA 488 at paras. 25 – 27.

He went on to summarize the law that the plaintiff must prove that the defendants breached their duty of care, and that the breach cause her injuries.

Observing that Ikea management met with their cleaning managers on a regular basis and inspected the cleaning program and remedied any deficiency immediately, and that cleaning checklists were completed hourly in each washroom, he found that the plaintiff failed to establish that the systems, practices, and procedures at Ikea were unreasonable.

Ultimately Mr. Justice Weatherhill concluded that the plaintiff also failed to make her case against the cleaning contractor because she could not show a connection (or nexus) between her fall and a failure on the part of the cleaning contractor:

[40]         Fatal to the plaintiff’s case against SBS is her failure to demonstrate a nexus between her fall and a breach by SBS of its duty of care under the Act.

[41]         The plaintiff testified that she does not know what she slipped on.  She merely assumes it was water.  Moreover, her evidence is that there were several people who came and left the washroom while she was in the stall.  If she did slip on water, which she has not proven, the source could have been water splashed on the floor while any one of these people was washing their hands at the sink.  As stated above, the court is not entitled to resort to speculation when determining the cause of the plaintiff’s fall.

[42]         However, even if the plaintiff had proven on a balance of probabilities that she slipped on water left on the floor by Ms. Kaur while the plaintiff was in the washroom stall, she also has the onus of establishing on the balance of probabilities that she did so as a result of SBS, as an occupier, failing to meet the reasonableness standard required of it under s. 3(1) of the Act.  In my view, the plaintiff failed to do so.

[43]         Mr. Hay, SBS’s Chief Executive Officer, gave detailed evidence regarding the systems it had in place at Ikea for the provision of its maintenance and janitorial services and the training of its staff.  Those systems, policies and procedures are by any measure sophisticated, thorough and detailed.  It is hard to imagine reasonable steps that could have been implemented to improve them.

[44]         The plaintiff submits that it is apparent from the SBS Incident report that Ms. Kaur, the cleaner in question, knew that someone was in the washroom stall while she was mopping the floor, and that it was unreasonable for SBS not to have an established protocol in place for the cleaner to verbally alert patrons who were using washroom stalls to the fact that the floor outside of the stall was being mopped.

[45]         Mr. Hay agreed that there is no such protocol in place.  He testified that, in such situations, SBS relies on the noise generated by the cleaners during the cleaning process.

[46]         The plaintiff submits that the failure to have such a protocol was a breach of SBS’s obligations under s. 3 of the Act.  I disagree.  There is no evidence that such a policy exists anywhere in the industry.  Moreover, it raises policy issues relating not only to privacy, but also equality considerations in terms of the potential for hearing persons being preferred over non-hearing persons.

[47]         This incident took place in a ladies washroom.  The potential for some dampness on the floor ought reasonably to have been expected by anyone using it.  The mere presence of some water on the floor does not constitute an objectively unreasonable risk of harm: Zary v. Canada Mortgage and Housing Corp., 2015 BCSC 1145 at para. 57.

Since the plaintiff failed to prove that her injuries were caused by any fault of the defendants, she was not entitled to damages. She was also ordered to pay the defendant’s costs of the proceeding.

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