Introduction
The British Columbia Court of Appeal, in Rivers v North Vancouver (District), 2021 BCCA 407, considered a negligence claim brought pursuant to the common law and British Columbia’s Occupiers Liability Act (the “Act”). In doing so, they clarified what the court must consider in determining whether an occupier created an unreasonable risk of harm.
Brief facts
In 2015, Mr. Thomas Rivers (the “Appellant”) attended his son’s little league baseball game in North Vancouver at the Inter River Park (the “Premises”) when he was struck by a foul baseball. Specifically, the Appellant was watching his son play on field D when a foul ball from the game that was being played on field C struck him on the back of the head. The Appellant brought an action for negligence under the Act and at common law for damages as a result of the injuries he sustained from the accident against, among others, the District of North Vancouver (the “District”) and the Mount Seymour Little League Association, West Vancouver Little League Society and John Doe 1–14, alleged to be members of Forest Hills Little League (the “League”).
Trial decision
Mr. Justice Tammen (the “Trial Judge”) dismissed the action pursuant to a summary trial application due to the Appellant’s failure to prove that the District failed to meet the standard of care required by common law or the Act. He concluded that the Appellant was unable to point to any act or omission on the part of the District as the occupier of the Premises that caused the injury, which must be established before liability is considered. Further, the Trial Judge held that the District was not required to safeguard spectators against every possible risk of injury that is not reasonably foreseeable. The Trial Judge also considered the inherent risk involved in being a spectator at a baseball game. In relying on an expert report regarding the layout of the baseball diamonds, the Trial Judge held that the Premises were reasonably safe since there was nothing unusual about the design or configuration that deviated from industry standards.
Appellant’s position
The Appellant appealed the trial decision on the basis that the Trial Judge erred in considering the inherent risks of being a spectator at a baseball game when conducting his negligence analysis. The Appellant submitted that the Trial Judge incorrectly invoked the volenti non fit injuria doctrine, which is a defence that can be raised in response to a claim for damages in negligence; it asserts that a person may be denied entitlement to recover damages if they voluntarily or knowingly assumed risk in relation to an action they undertook.
Analysis
The Court of Appeal dismissed the Appellant’s claim in finding that the Trial Judge did not err in his negligence analysis. As such, the Court of Appeal held that the Trial Judge rightfully considered all of the surrounding circumstances in his assessment since determining whether the District discharged its duty to take reasonable care to see that individuals using the Premises will be reasonably safe requires consideration of all the surrounding circumstances in determining whether there was an objectively unreasonable risk of harm. Specifically, the court held the following at paragraphs 55 and 56:
… Assessing the known risks inherent in an activity, whether it be watching a baseball game as a spectator or playing golf, along with the customs a reasonable person participating in the activity would know were in play to ameliorate those risks, whether it be shouting “heads up” or “fore”, are contextual factors that inform whether an occupier has created an objectively unreasonable risk of harm.
…
… To exclude consideration of the risks inherent in watching a baseball game, the appreciation of those risks by spectators, and the customs traditionally adopted by spectators to prevent those risks from materializing, would decontextualize the inquiry and inappropriately foreclose considerations of relevant factors that inform articulation of the standard of care and whether is has been breached.
The Court of Appeal also held that the Trial Judge did not invoke or even consider the volenti doctrine. The Trial Judge’s analysis with respect to the surrounding circumstances was conducted pursuant to determining whether the standard of care was met, not as a means to transfer an obligation onto the Appellant to be more mindful of the inherent risks of being a spectator at a baseball game. The Court of Appeal ultimately determined that the Trial Judge was right to conclude that the risk of moderate harm to a spectator at a baseball game was not reasonably foreseeable.
The Court of Appeal concluded that the Appellant did not establish that the District and the League failed to meet the standard of care under the Act or at common law.
Practical considerations
The negligence analysis for determining an occupier’s duty and standard of care is highly factual. Contextual factors must not be overlooked and should be considered when bringing or responding to an application of this nature.
