Can a Person Still Sue If the Person Was Aware of a Risk and Took the Chance of Harm Anyway?

Occupiers of Premises May Be Sued For Failure to Ensure That Premises Are Reasonably Safe For Other Persons Who Are Upon the Premises Unless the Other Persons Willingly Accepted Risk of Harm. Furthermore, Occupiers Should Remain Aware That Acceptance of Risk Is More Than Just Knowledge of Risk.

Understanding the Duty of Care Owed As Per Occupier Liability Law Including Issues Involving Risks Willingly Assumed

Lawsuit Document Owners, tenants, contractors, and other individual persons or corporate entities that hold care and control of premises, as occupier's of premises, whether present at the premises or otherwise, owe a duty of care to all persons, with exception for those persons who willingly accept certain risks or those persons who are trespassing while engaged in criminal activity. Where this duty of care is owed, the occupiers are legally required to take such care as is reasonably required to keep the premises in a safe condition.

The Law

Specifically, the legal duty summarized above is statutorily prescribed by sections 3(1), 4(1), and 4(2) of the Occupier's Liability Act, R.S.O. 1990, c. O.2 where it is said:

3 (1) 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, and the property brought on the premises by those persons are reasonably safe while on the premises.

4 (1) The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.

(2) A person who is on premises with the intention of committing, or in the commission of, a criminal act shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1).

Although the Occupier's Liability Act specifically states that the duty of care owed is to do what is "reasonable, the question of the extent of care required arises regularly within the course of litigation.  As per the case of Kerr v. Loblaws Inc., 2007 ONCA 371 whcih was recently cited in Nemr v. 9100288 Canada Inc. et al, 2021 ONSC 4733 the duty of care is explained as less than perfection and without a guarantee that premises will be absolutely safe.  Specifically, it was said:

[19]  As stressed by the trial judge, the standard of care imposed on Loblaws in this case is a standard of reasonableness.  It requires neither perfection nor unrealistic or impractical precautions against known risks.  In my view, the above-quoted instructions by the trial judge properly drew the jury’s attention, in clear and precise terms, to Loblaws’ obligation to take such care as was reasonable in all the circumstances to make the Zehrs’ premises reasonably safe for customers.

[20]  Importantly, the trial judge also told the jury that it should assess whether Loblaws took reasonable care in the circumstances by considering the measures employed by it to render the Zehrs’ premises reasonably safe for Ms. Kerr, as a store patron, including such matters as notice, lighting, guarding, and maintenance.  The effect of this direction was to inform the jury that Loblaws was required by the standard of care set out in s. 3(1) of the Act to take positive steps to render the Zehrs’ store premises reasonably safe.  It also alerted the jury to its task of determining whether the steps taken by Loblaws were sufficient to discharge the burden placed on it by the Act.

[21]  Moreover, the trial judge’s instructions on the standard of care implicitly recognized the important distinction between the well-established roles of the trial judge and the jury in a civil negligence action.  In Galaske v. O’Donnell, 1994 CanLII 128 (SCC), [1994] 1 S.C.R. 670 at 694, Major J. of the Supreme Court of Canada – in dissent on other grounds – noted with approval the following passage from Professor Fleming’s textbook on The Law of Torts, 8th ed. (Sydney: Law Book Company, 1992) at 106:

It is for the court to determine the existence of a duty relationship and to lay down in general terms the standard of care by which to measure the defendant’s conduct; it is for the jury to translate the general into a particular standard suitable for the case in hand and to decide whether that standard has been attained.

[22]  Justice Major explained at p. 694:

The judge, as a matter of law, must determine, in general terms, the obligation imposed upon the defendant. …Having established the standard of care in general terms, it is then a finding of fact to determine, in the context of a particular case, the obligation imposed on the defendant, and to determine whether or not that obligation was met.  [Citations omitted.]

See also Stewart v. Pettie, 1995 CanLII 147 (SCC), [1995] 1 S.C.R. 131 at 144-45; Nova Mink Ltd. v. Trans-Canada Airlines, 1951 CanLII 325 (NS CA), [1951] 2 D.L.R. 241 (N.S.S.C.) at 254.

[23]  In this case, s. 3(1) of the Act established the particular standard of care to which Loblaws was bound.  The trial judge specifically referenced and explained that standard in his charge.  It remained for the jury, as the trier of fact, to evaluate the precautionary measures taken by Loblaws and to decide whether Loblaws had attained that standard.

[24]  To accept the appellants’ contention that trial judges are obliged in occupier liability cases tried by judge and jury to articulate the governing standard of care according to prior judicial decisions about conduct found to have satisfied, or to have fallen short of, the applicable standard would be to ignore the reality that the application of the standard of care in such cases is a fact-specific exercise that varies from case to case.  This important principle was emphasized by the Supreme Court of Canada in Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456 at 472:

After all, the statutory duty on occupiers is framed quite generally, as indeed it must be.  That duty is to take reasonable care in the circumstances to make the premises safe.  That duty does not change but the factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation – thus the proviso “such care as in all circumstances of the case is reasonable”.  [Emphasis added.]

See also Galaske, supra, per McLachlin J. (as she then was) at 698-99; Winters v. Loblaws Supermarkets Ltd. (c.o.b. Real Canadian Superstore), [2005] O.J. No. 3406 (S.C.J.) at para. 19; Garofalo v. Canada Safety Ltd., [1998] O.J. No. 302 (Gen. Div.) at para. 22.

Waldick v. Malcolm

Interesting, whereas it is stated within the Occupier's Liability Act that the duty of care is inapplicable to the risks willingly assumed, such raises the question of when is a risk willingly assumed?  The Supreme Court of Canada decision within the case of Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 SCR 456 addressed many key issues involving the duty of care owed to a person who was aware of risks.  In brief summation of the key facts, both Waldick and Malcolm were residents of a rural area within which it was, allegedly, common for residents to clear snow and ice from steps and walkways; however, it was common to plow depths of snow upon driveways while otherwise leaving driveways untreated by salt or sand.  Accordingly, the icy nature of rural driveways was known to Waldick.  Additionally interesting, Waldick was further aware, and specifically aware of the icy nature of the Malcolm driveway whereas Waldick arrived by car and then walked across the driveway to enter the residence of Malcolm.  Subsequently, Waldick returned to the car to obtain a package of cigarettes and then while on the way back to the residence suffered a serious slip and fall resulting in a fractured skull.

The Waldick case progressed through the courts and eventually the Supreme Court addressed the issue of whether Waldick, who knew or ought to know that the driveway was icy and dangerous was, by walking upon the driveway despite awareness of the risk, willingly accepting the risk.  Essentially the key legal questions reviewed by the Supreme Court were:

  1. Whether a duty of care was breached due to the failure to treat the icy driveway surface with salt or sand; and
  2. Whether the awareness of the slippery condition and inherent risk constituted as an acceptance of the corresponding risk.

Supreme Court Decision, duty of care

In answering the question of whether a duty of care was breached, the Supreme Court reviewed the reasoning for decision at the lower court level and accepted the reasonings for the interpretation and application of the Occupier's Liability Act within the underlying court decisions.  In particular, the Supreme Court, while referencing the words of the Trial judge, agreed that a duty of care was breached despite the customary practice within the rural region to leave driveways untreated by salt or sand, stated:

In the instant appeal, the relevant local custom which the courts below allegedly neglected to consider was "not sanding or salting driveways".

I am unable to agree with the Malcolms' submissions for several reasons.  First of all, I do not agree with the premise of their argument, viz., that the lower courts failed to consider local custom.  In my view, both Austin J. and Blair J.A. gave ample consideration to all the factors which could enter into an assessment of what constitutes reasonable care, including the alleged custom in the rural community involved.  A close reading of the judgments below reveals that the learned judges considered, among other things: the weather, the time of year, the size of the parking area, the cost of preventive measures, the quality of the footwear worn by Waldick, the length of the pathway, and the fact that these were rural and residential premises.

The mere fact that the alleged custom was not decisive of the negligence issue does not in any way support the conclusion that it was not considered. After all, the statutory duty on occupiers is framed quite generally, as indeed it must be.  That duty is to take reasonable care in the circumstances to make the premises safe.  That duty does not change but the factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation -- thus the proviso "such care as in all circumstances of the case is reasonable".  One such circumstance is whether the nature of the premises is rural or urban.  Another is local custom, which Blair J.A. explicitly mentions and I view his reasons as considering and rejecting the alleged custom.

Secondly, there are proof problems that complicate the Malcolms' argument in this regard.  Acknowledging that custom can  inform the courts' assessment of what is reasonable in any given set of circumstances, it is nevertheless beyond dispute that, in any case where an alleged custom is raised, the "party who relies on either his own compliance with custom or the other person's departure from general practice bears the onus of proof that the custom is in effect." (Linden, supra, at p. 167).  Only in the rarest and most patently obvious of cases will the courts take judicial notice of a custom, and even this, as Linden warns, is a "dangerous practice".

It would be preferable for courts to demand evidence of the general practice or not to rely on custom at all.  Counsel who wish to rely on custom would be most unwise to attempt to do so without adducing expert evidence of general practice. [At p. 167.]

In the case at bar, there is nothing apart from the completely unsupported testimony of the appellant Mrs. Malcolm that tends to prove something that could qualify as custom.  She was asked:

Q:  To your knowledge ... do any of your neighbours in the immediate area salt their driveways?

A:  No.

Q:  Does your brother?

A:  No.

It was clearly open to the courts below to conclude that the evidence was, without more, insufficient to discharge the onus of proof that rests on the Malcolms.  That is how I read the judgments below.

Thirdly, even if there had been adequate evidence in the record of a general local custom of not salting or sanding driveways, I am not of the view that such a custom would necessarily be decisive against a determination of negligence in the case at bar.  Shortly after the extract cited by the Malcolms, (supra, at p. 154),  Linden also points out that:

... tort courts have not abdicated their responsibility to evaluate customs, for negligent conduct cannot be countenanced, even when a large group is continually guilty of it.

In short, no amount of general community compliance will render negligent conduct "reasonable ... in all the circumstances".  (See in another context, the recent decision of this Court in Roberge v. Bolduc, 1991 CanLII 83 (SCC), [1991] 1 S.C.R. 374, in which L'Heureux-Dubé J., writing for the Court, held that professional practice, which is not shown to be demonstrably reasonable, could not be an answer to a claim of professional negligence.  See also: James v. River East School Division No. 9 (1975), 1975 CanLII 932 (MB CA), 64 D.L.R. (3d) 338 (Man. C.A.)).  If, as the lower courts found, it is unreasonable to do absolutely nothing to one's driveway in the face of clearly treacherous conditions, it matters little that one's neighbours also act unreasonably.  Presumably it is exactly this type of generalized negligence that the Act is meant to discourage.

Supreme Court Decision, awareness or acceptance

With the first question answered that indeed a 'duty of care' was owed despite, if true (whereas the evidence was self-supporting testimony from Mrs. Malcolm), that local custom was to leave driveway areas untreated, the next question was to consider whether Waldick willingly accepted the risk via the knowledge of the icy area and walking upon the icy area despite the knowledge of the risk.  In this regard, the Supreme Court again accepted the interpretation, application, and reasonings, of the Trial judge whereas it was said:

In my view, the reasons of Blair J.A. on this issue are also an admirably correct statement of the law.  I have no doubt that s. 4(1) of the Act was intended to embody and preserve the volenti doctrine.  This can be seen by looking at the statutory scheme that is imposed by the Act as a whole.  It is clear the intention of the Act was to replace, refine and harmonize the common law duty of care owed by occupiers of premises to visitors on those premises.  That much seems evident from the wording of s. 2 of the Act:

2. Subject to section 9, the provisions of this Act apply in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining his liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons.

I am of the view that the Act was not intended to effect a wholesale displacement of the common law defences to liability, and it is significant that no mention is made of common law defences in s. 2.  Reinforcement of this view is found when one asks why this area of law should entail a defence other than volenti which is applicable to negligence actions generally.  There does not appear to be anything special about occupiers' liability that warrants a departure from the widely accepted volenti doctrine.

Accordingly, I agree with Blair J.A. who found that the second branch of decided cases provides compelling grounds for viewing s. 4(1) as an embodiment of the volenti doctrine.  Blair J.A., at p. 728, approved the words of DuPont J. in Beatty v. Brad-Lea Meadows Ltd. (1986), 39 A.C.W.S. (2d) 334 which, in my view, are particularly apposite to the case at bar.  DuPont J. said, at p. 8, that if the courts interpret s. 4(1) as requiring only knowledge of the risk on the part of the victim:

It would seem to follow that if such contention is correct, occupiers would always escape liability whenever a risk of any sort is apparent or known to an injured party, even where the occupier has failed to take any reasonable steps to render the property reasonably safe for use.... Such an interpretation would nullify much of the intent of s. 3(1) of the Act that specifically creates a duty of care upon the occupier to take reasonable steps to maintain the property in a reasonably safe condition.

Usually more than mere knowledge of the risk is required to invoke s. 4(1) of the Act in the sense suggested.  The risks willingly assumed must be known to the plaintiff and from the plaintiff's conduct and circumstances revealed, the plaintiff must have assumed it in the sense of being prepared to accept the entire risk of injury that may result without recourse to any contribution or liability from or of any other party.  [Emphasis added.]

As the Trial judge stated, and the Supreme Court agreed, if mere knowledge of risk was enough to invoke the assumption of risk prescribed in section 4(1) of the Occupier's Liability Act, the intent of section 3(1) would be lost whereas occupiers, instead of taking the necessary care to ensure that premises are kept reasonably safe would merely need to raise an awareness of an unsafe condition.  Such an interpretation of the Occupier's Liability Act is illogical and the Supreme Court stated that more than knowledge is required to show willingness to accept risk and that it must be shown that the victim genuinely was prepared to accept the full risk of injury and do so without any remaining right to pursue liability against, and compensation from, any other person.

Summary Comment

For owners, tenants, and others who have care and control of the condition upon premises, the Occupier's Liability Act imposes a duty of care to ensure that persons and property are reasonably safe while upon the premises.  Interestingly, the Occupier's Liability Act also states that a person who willingly assumes the risk of injury or damage loses the right to legally pursue an occupier for compensation.  However, whereas the question then arises as to what constitutes acceptance of risk and whether mere knowledge of risk is acceptance.  In answering this question within the case of Waldick v. Malcolm, the Supreme Court stated that more than knowledge of risk is required and that it must be shown that the person alleged as willingly accepting the risk was indeed prepared to forgo all rights to legal recourse for any and all harm.


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