Decision #24/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 13, 2004, at the appellant's request. The Panel discussed this appeal on the same day.

Issue

Whether or not 75% of the costs in relation to this claim should be charged to a 3rd party employer.

Decision

That 75% of the costs in relation to this claim should not be charged to the 3rd party employer.

Decision: Unanimous

Background

On June 2, 2000, the claimant was pulling a pallet of empty crates into the warehouse at the third party's premises when he slipped on a wet floor and fell on his back against another pallet of crates. The claimant said he used his right arm to block the fall. The claimant was employed by a transport company at the time of the incident. Following an investigation into the claim, the Workers Compensation Board (WCB) accepted the claim and later allocated 25% of the costs of the claim to the claimant's employer and 75% of the costs of the claim to the third party employer (the location where the injury took place). The "transfer of costs" was made in accordance with Subsections 82(4) and 82(5) of The Worker's Compensation Act (the Act). On May 20, 2003, the third party firm disagreed with the decision and the case was referred to the Assessment Committee for consideration.

On July 14, 2003, the Assessment Committee confirmed the WCB's decision to allocate 75% of the costs of the June 2, 2000 injury to the third party. In reaching this conclusion, the Assessment Committee stated the following:

"In the case at hand, the Committee has to consider whether [the third party] was negligent and should be held responsible for 75% of the costs resulting from [the claimant's] injury of June 2, 2000.

Information from [the third party] confirms that water drains from the washer at 2:00 am, an hour prior to [the claimant's employer]'s 3:00 am delivery. Given the amount of water being drained, it is highly probable that water may have pooled in the area in which the claimant was working at the time. There is also the possibility the drains may not have been cleaned until 5:00 am.

The fact that the floor was wet and sloped creates a risk for anyone in the area. The possibility water may have pooled in the area poses an even greater hazard. In the Committee's opinion [the third party] was negligent in that they had control over this environment and had allowed this risk. Therefore, 75% of the costs of the claim will remain with [the third party].

The worker, on the other hand, should have exercised reasonable care to ensure his safety. The Committee is of the opinion there was contributory negligence on the worker's part as he was familiar with the working area and, as such, should have been extra cautious under these working conditions. Thus, 25% of the costs of the accident will remain with [the claimant's employer]."

On August 28, 2003, the third party employer disagreed with the Assessment Committee's decision and an oral hearing was arranged.

Reasons

This appeal arose out of a decision to transfer some of the costs of a compensable injury to a third party, as described above in the Background section. The board's decision in this regard was reconsidered by the Assessment Committee, and upheld.

In appealing to this Commission, the third party asked us to reverse this decision.

For the appeal to be successful, we would have to find that there was no negligence on the part of the third party, which would justify this cost transfer. We did come to that conclusion.

In reaching our decision, we conducted a thorough review of the claim file, as well as holding a hearing, at which we heard testimony from a representative of the appellant and argument from its legal counsel.

Pursuant to section 82(5) of the Act, the board may transfer some or all of the costs of a compensable injury to another employer in cases where such an employer is found to have caused or contributed to the injury through negligence.

In the case before us, such a finding was made by a board Legal Services Officer. In his presentation to the Panel, the legal counsel for the appellant argued that the board lawyer had misapplied the law to the facts at hand.

The following facts are undisputed:
  • The claimant incurred an injury as a result of a slip and fall, while making a regularly scheduled delivery of empty milk crates - at approximately 3:00 a.m. on June 2, 2000.

  • This was not the first time he had made such a delivery. He had done so on many, previous occasions.

  • Each day, at about 2:00 a.m., water was released from a wash area. This water flowed through the same area where the claimant delivered the empty crates and drained into two floor drains.

  • The claimant was well aware that the area was often, if not always, wet.

  • He wore a type of work boot mandated by his employer, which had a rubber sole.

  • The loading dock area is not accessible to the general public. Only employees of the third party and its agents have access to the area.
Other allegations in respect of causation that were made, but not proven, include:
  • A comment by the employer's Risk Manager to the effect that:

    • "It was determined that water, which had been allowed to accumulate on the cement floor and ramp-way, without any form of intervention or cautionary notice from [the third party] or their employees, was the direct cause of the accident."

  • A finding by the Assessment Committee of the board that:

    • "Given the amount of water being drained, it is highly probable that water may have pooled in the area in which the claimant was working at the time. There is also the possibility the drains may not have been cleared until 5.00 am. … The possibility that water may have pooled in the area poses an even greater hazard."
Counsel argued before us that these allegations are based on supposition or conjecture and don't even meet the "balance of probabilities" test. We accepted this argument and did not give weight to these statements.

We examined the issue of negligence and duty of care, in particular the appellant's counsel's arguments in respect of the opinion of the board's legal services officer.

Section 3(1) of The Occupier's Liability Act, RSM 1987, c.08 provides:
An occupier of premises owes a duty to persons entering on the premises … to take such care as, in all circumstances of the case, is reasonable to see that the person … will be reasonably safe while on the premises.
It is conceded that the appellant third party is an occupier as contemplated by the Act. The question for the panel, and addressed by the board's legal services officer, is whether or not the appellant met the standard of care owed to the claimant. Failure to do so would constitute negligence.

In her opinion, the board counsel quoted from a leading Canadian text on the matter, as follows:
"Occupier's liability legislation imposes an affirmative duty on occupiers to take reasonable care for the safety of people on the premises. The duty is not absolute. An occupier is not made guarantor or insurer of the safety of persons coming on his premises, but is under an obligation to take such affirmative steps as are reasonable in the circumstances. In determining whether an occupier has discharged this duty in any particular case, it is necessary to apply the test of whether or not the danger was foreseeable ….1"
She quotes further, from this text:

"An occupier is responsible only for unusual dangers because he is entitled to assume that ordinary reasonable people know and appreciate usual or common perils and need not be warned or otherwise protected against them. The term "unusual danger" is used objectively. It means such danger as is not usually found in carrying out the task or fulfilling the function which the invitee has in hand …. (emphasis added)

Unusual danger is a relative term. It is relative to the kind of premises visited and the class of persons who normally visit such premises. A danger which may be usual in one kind of premises, such as a mine or factory, would not be usual in another, such as an office or store.2"

At this point, based on the textual comment provided, it was open to the board counsel to come to a conclusion for or against the appellant.

She then relied on case law which supported a finding against the appellant, finding that the appellant had breached the standard of care owed to the claimant.

Counsel for the appellant argued that the case law referred to by the board's counsel describes situations very different from those on the premises of the appellant in this case. The relied-on cases deal with public places, such as a drug store, a bank and a department store, in which one would not expect to find surface water that might cause a slip and fall.

The appellant's counsel provided us with alternative case law, in particular a recent decision of the Nova Scotia Supreme Court.3 In this case, the plaintiff had suffered a head injury as a result of a fall in the change room of a municipal sports facility. She argued that water on the floor of the change room had caused her to fall, hitting her head on the wall as she fell, which caused the injury.

In court, the plaintiff admitted that she was a frequent user of the facility and, as such, was aware that there usually was water on the floor. The court recognized that the presence of water on such a floor was inevitable given that the facility was used regularly by a large number of people.

In considering the issue of whether or not the floor was safe, the Nova Scotia court noted:
"In any event, one cannot lose sight of the reality that during approximately 13 years of operation, which translates into well over a million users of the aquatic centre alone by females, and hence a similar volume of use of the ladies change room, there have been no other reported slip and fall accidents in the lavatory area. Given that track record … I am unable to conclude that the lavatory floor tiles are unsafe for ordinary use such as to constitute negligence on the part of the defendant.4"
The analogy that the appellant's counsel asked us to take from this was that, to the best of its knowledge, the appellant was not aware of any other incidents where a person had fallen in the loading dock area, due to the wetness of the floor. In the absence of such previous incidents and the absence of failure by the appellant to take remedial action as a result, it was not negligent in its duty.

In her opinion, the board counsel commented that "no signs or barricades were in place to warn those passing through or working in the area of the possible hazard." Conversely, the Assessment Committee, which visited the site, noted that there was a sign posted on an overhead beam, which read: "Caution: Floor Slippery when Wet."

Counsel for the appellant noted that this specific issue was addressed in Corbin. On this issue, the judge concluded:

"However, I am not satisfied that the absence of such signs was a causal factor in the plaintiff's slip and fall. I hold the same view as that expressed by the court in Langille v. Kootenay Boundary (Regional District) [1988] B.C.J. No. 858 that the posting of such notices in the shower area of a swimming pool complex might be considered a prudent measure but not a necessary one, bearing in mind it is common knowledge that wet floors in a lavatory area are likely to be slippery.

In the present case, the plaintiff acknowledged in her testimony that she was used to seeing water on the floor in the area where she fell and knew it was wet on the night she fell. I am not satisfied that she would have done anything differently in her movements had such warning signs or pylons been ever present. She knew that water was present on the lavatory floor and she must be taken to have known, as a matter of common knowledge without the need for warning signs, that tile floors are likely to be slippery when wet.5"

We agree with the appellant's counsel that the case law relied on by the board counsel is not relevant to the case before us. Wet and slippery conditions on the floor of a drug store, department store or bank would indeed be unusual and unexpected by visitors to such establishments.

We find that the Corbin case is more germane to the case before us, wherein it is normal for the floor to be wet and, potentially, slippery.

As noted above, and as quoted from the Klar text, the test that we had to apply in order to come to a conclusion is whether or not the danger was foreseeable.

We have already noted that the claimant attended at this site on a very frequent basis. He was well aware that the usual condition of the floor was that it was wet and that there was a bit of a slope to it.

(While we had requested that the claimant attend the hearing, he did not. So, we were not able to query him, directly, as to the circumstances of the accident. However, the information on file was more than sufficient to allow us to determine the salient factors surrounding the event.)

Klar also writes that "an occupier is responsible only for unusual dangers because he is entitled to assume that ordinary reasonable people know and appreciate usual or common perils and need not be warned or otherwise protected against them. … It means such danger as is not usually found in carrying out the task or fulfilling the function which the invitee has in hand …"

It is our view that the conditions present on the appellant's premises on the night of June 2, 2000 were no different than on the many previous occasions that the claimant had visited those premises. Thus, they do not constitute an "unusual danger."

In considering the particular circumstances of this case, we find that there were no unusual dangers, that there were no known previous incidents that might have warned the appellant of such dangers and that, while the signage might not have been prominent, the usual state of the loading dock floor was well known to the claimant.

The appellant did not fail to meet its duty of care to the claimant. Thus, it was not negligent within the meaning of the Occupier's Liability Act.

Accordingly, the appeal is allowed: none of the costs associated with this case should be charged to the appellant.

Footnotes

1. L.N. Klar, Occupier's Liability, (Toronto: Carswell, 1995) at 18-78.
2. Ibid. at 18-43 and 18-44.
3. Corbin v. Halifax (Regional Municipality) (2003) NSSC 121, 214 N.S.R. (2d) 345.
4. Supra, at para. 44.
5. Supra, at paras. 53, 54.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of February, 2004

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