The Divisional Court in the recent case of Irvine v Seipt, 2017 ONSC 2551, dealt with the issue of liability for an injury in a home. It was hearing an appeal from the lower court’s decision, where the trial Judge found the injured party (Plaintiff) 65% liable and the Homeowners (Defendants) 35% liable for the fall.
On June 17, 2007, the Homeowners hosted an afternoon party to celebrate a 90th birthday. The Plaintiff was invited and upon arrival was directed to the backyard. Witness evidence was that she was startled by the Homeowner’s dogs and fell as she attempted to step up onto the deck.
Due to the fall the Plaintiff suffered an injury to her left wrist. The parties agreed that damages should be assessed at $31,500 and the trial was on the question of liability.
To establish liability in negligence it was necessary for the Plaintiff to show:
Section 3(1) of the Occupiers’ Liability Act provides that an occupier of premises owes a duty to take such care as, in all the circumstances of the case is reasonable, to see that persons entering upon the premises are reasonably safe while there. In this case, the trial judge held the homeowners owed a duty of care to the Respondent.
There was evidence that the deck was about 13.5 inches above the ground and the standard indoor riser is 7 inches. The Divisional Court Judges found that even assuming the height of 13.5 inches created a risk of harm, the reasons for the trial judge’s decision does not refer to any evidence and does not contain an analysis as to whether that created an objectively unreasonable risk of harm.
They further held the duty under the Occupiers’ Liability Act is not absolute and occupiers are not insurers liable for any damage suffered by persons entering the premises.
The Divisional Court, after reading the trial transcripts and reading the trial judge’s decision, found that the trial judge did not analyse what the applicable standard of care was in this case. The trial judge also did not explain how the height of the deck caused the Plaintiff’s fall. Without a finding that there was a direct cause between the Homeowner’s negligence (the deck step height was too high) and the Defendant’s fall, there could be no finding that the Homeowners were 35% liable or at all.
The Divisional Court did however note that the trial judge did consider findings that: the Defendant was walking; the step up to the deck was plain and obvious; the step up was significantly higher than the usual riser; it was daylight; and there appeared to be no issues of visibility. The Divisional Court then found: “It would be difficult to move from those findings to a conclusion that the elevation of the deck caused the injury sustained by the [Plaintiff].”
The Divisional Court concluded the trial judge erred in finding the Homeowners were liable to the Plaintiff by reason only of installing a deck that was 13.5 inches from the ground; by failing to find an objectively unreasonable risk of harm; and by failing to make a finding that the conduct of the appellants caused the injury to the respondent.
They held a properly instructed trial judge could conclude the Plaintiff had failed to prove that the Homeowners breached their duty of care and that the conduct of the Homeowners caused the Plaintiff’s damage. On that basis, they dismissed the claim against the Homeowners.
Although this case sets out that Homeowners will not always be found liable, it is important to minimize liability in any way possible. If you have a guest, service person, or anyone injured on your property, make sure to speak to a lawyer before apologising, negotiating, or discussing the matter with them.