March 28, 2016, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Patricia Kania brought an action for damages for personal injuries suffered as a result of a fall that occurred on Heart and Crown Irish Pub’s premises. The issues at trial were liability, contributory negligence, and the extent and quantum of non-pecuniary and pecuniary damages.
Ms. Kania, who used to be a regular patron of the bar but had not been there in some time, went to the pub to have a beer with some friends. She had a beer on the patio with her friends then they headed inside to listen to the band. The pub was very crowded. At one point Ms. Kania went to the basement washrooms and when she came up she couldn’t locate the friends she came with. She decided to go outside to the patio again, and saw another friend on the sidewalk.
She stepped off the patio to speak with the friend. The patio/sidewalk transition used to have a minimal grade change with a ramp. Ms. Kania only realized that a full step measuring 14.3 cm had been installed when she came down hard on her foot, fell, and immediately was in pain. Staff brought her ice for her foot and she headed home with a friend. The following morning she went to the hospital where it was confirmed she had broken her navicular bone.
Ms. Kania’s claim in this action is based on the Occupier’s Liability Act which describes the legal duty an occupier of premises has towards another person who comes onto those premises, specifically 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 on the premises are reasonably safe while there. She argues that Heart and Crown Irish Pub owed a duty of care to see she was reasonably safe while there,
The Justice determined that the issue is whether Heart and Crown breached that duty of care. The patio in question had wrought iron railing at the edge and the tables were set to allow for a clear walking path. There were no markings along the leading edge of the step where patrons could pass by the railing. The only lighting in the area of the step came from two gooseneck lights shining on a sign above the west entrance to the building and from a light shining through a glass door in the staircase leading to the second floor.
An expert witness testified that the Ontario Building Code specifies that stairs must be lit in a manner that a person can “to observe contrast in lighting and change of elevation at walkways and stairs”. The expert witness then attended the scene of the accident under similar lighting conditions as the night of the accident. He noted that a black strip of grip tape had been placed across the leading edge of the step which he opined improved step visibility significantly. He noted that single steps are difficult to see and it is therefore important to mark the step with contrasting colours, improved lighting, signs, and other visual cues such as a handrail that flows down in the same direction as the step. He also stated that the railing along the top of the step signified a change in use, not a change in elevation, and that it did not serve as a warning to a change in elevation.
Counsel for Heart and Crown Pub questioned the expert who conceded that the lighting on the lower level was brighter than the lighting on the upper level from where Ms. Kania was approaching the step and that difference in lighting was sufficient to provide a visual cue of the change in elevation. Counsel also invited the court to find that the divider railing at the edge of the upper level of the patio and the layout of the tables on both sections of the patio also provided visual cues to Ms. Kania that there was a change of elevation. The Justice respectfully disagreed on the last point.
The Justice returned to the photographic evidence as it was the instructive and determinative of the issue of whether Heart and Crown Irish Pub was in breach of its duty to keep the premises reasonably safe during Ms. Kania’s visit on the night she fell and injured herself. In the circumstances, the Justice found that the single step posed a danger to visitors and to Ms. Kania. The danger was foreseeable. It could easily have been remediated to a large degree with the application of grip tape to the leading edge of the step. The cost of doing so would have been negligible.
On that basis Heart and Crown Irish Pub breached its duty of care to keep the patio reasonably safe for Ms. Kania, and failed to meet the standard of care required of it in the circumstances.
In the matter of contributory negligence the Justice ruled that Ms. Kania had no reason to anticipate a step. Absent any visual cue which Ms. Kania either ignored or failed to observe, the Justice concluded Heart and Crown Irish Pub has not proved on a balance of probabilities that Ms. Kania failed to take reasonable care for her own safety, and he declined to assign any responsibility to Ms. Kania for the injuries she suffered when she fell at the Heart and Crown.
In this action, Ms. Kania claims damages under the following heads:
- non-pecuniary general damages for pain and suffering and loss of enjoyment of life;
- special damages for out of pocket expenses to date;
- loss of earning capacity / loss of competitive advantage; and
- future care costs / housekeeping and home maintenance
Justice Valin reviewed Mr. Kania’s very detailed submissions and ruled that Ms. Kania shall have judgment against Heart and Crown Irish Pub in the amount of $212,659.