On October 7th 2009, the Alberta Court of Appeal released its decision of Wood v. Ward. The decision stated the Occupier's Liability Act, R.S.A. 2000 C.0-4 (the “Act”) was not intended to create “no fault liability.”
In this case, the Appellant volunteered to help the Respondents (“Occupiers”) in applying new roofing material to their flat roof. The Appellant was familiar with the property and had been up on the roof before. He further acknowledged that he was well aware of the roof's features and the risks associated with working on a roof. Neither the Appellant nor the Occupiers took any safety measures in conducting the roof repair. The Appellant backed up without looking, stepped off the edge of the roof, and fell to the frozen ground below. He suffered serious injuries and sued the Occupiers of the home.
The trial judge found that the Occupiers had not breached the duty owed to the Appellant under the Act, and further held that since the risk was obvious, the Occupiers did not have the duty to warn the Appellant of the potential risk. The trial judge concluded that it was not reasonably foreseeable, in all circumstance, that someone who exercises reasonable diligence would step off a garage roof.
The Court of Appeal upheld the trial decision. However, the Court of Appeal did note that there were errors in the reasoning of the Trial Judge. The Court of Appeal held that an Occupier only has a duty to protect visitors from unusual dangers that the Occupier was aware of, or should have been aware of, by warning the visitor of this danger. Just because an Occupier has a duty to prevent a visitor from being injured from a reasonably foreseeable risk, does not mean that the Occupier is automatically liable for any injury suffered as a result of a foreseeable risk. The onus lies on the visitor to demonstrate that the Occupier was negligent. Even if the Occupier could reasonably foresee the risk and was negligent, this does not discharge the visitor from his own duty in regard to his own safety. The Occupier's duty will only end when either the risk on the premises or the visitor's conduct becomes reasonably unforeseeable.
In this case, falling off of the roof was a reasonable risk known to the Appellant and the Occupiers. The Occupiers' only duty was to ensure that the premises were “reasonably safe”. They were not expected to guard against any foreseeable accident. The Court of Appeal held that the premises were reasonably safe and the Occupiers were not required to take any further steps in preventing the Appellant from falling off of the roof.
This alert is a general overview of the subject matter and cannot be regarded as legal advice. Please contact Alexis Moulton or Dave Risling, or any other member of our Insurance Practice Group for further advice on this or any other Insurance Law matter. |
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