Date:  19981214
                                                Docket:  11351
                                        Registry: Dawson Creek





          IN THE SUPREME COURT OF BRITISH COLUMBIA




BETWEEN:


                       DEBRA LEA TRASK


                                                     PLAINTIFF


AND:


        POMEROY ENTERPRISES LTD., ARBOR HOMES LTD.,
           WILLIAM ROBERT POMEROY and RAY YENKANA


                                                    DEFENDANTS




                    REASONS FOR JUDGMENT

                           OF THE

               HONOURABLE MR. JUSTICE BRENNER




Counsel for the Plaintiff:                           W. Plenert


Counsel for the Defendants:                         H.C. Hayden


Place and Date of Hearing:                   Dawson Creek, B.C.
                                     November 9, 10 & 12, 1998
[1]  On April 3, 1994 the plaintiff, Debra Trask, age 43, was
injured in a fall from steps off the outside deck of a house at
9716-97th Street in Fort St. John owned by the corporate
defendants and managed by Arbor.  The plaintiff was in a long
term relationship with Brian Jackle whose son Chris had rented
the house with a friend Trelaine Severeid.  A written tenancy
agreement was signed in November 1993.  In January, Severeid
had decided to move out and the plaintiff and Brian Jackle
moved into the house.  At a meeting about a week afterwards,
the principal of Arbor, Ray Yenkana was advised of the
plaintiff's occupancy and he agreed to the substitution of the
plaintiff and Brian Jackle for Severeid.

[2]  On Easter Sunday April 3, 1994 the plaintiff was leaving
the house to join her husband and his two daughters at their
car to go for a drive after dinner.  She paused on the first
stair down from the deck to light a cigarette.  The stair gave
way.  She turned her right ankle and toppled over the outside
of the stairs onto the ground.  She landed awkwardly and
suffered a comminuted fracture of her left ankle.

THE ACCIDENT SITE
[3]  The corporate defendants had a deck added to the house
after they purchased it in 1988.  The deck wraps around the
side and front of the house.  The deck can be accessed by
stepping onto it from ground level at the front door or by
taking the steps which were closer to the side door of the
house.  The front part of the deck at the front door was a step
above ground level (300 mm) but the ground fell away towards
the side of the house so that at the stairs the deck was 700 mm
above grade.  The deck at the side of the house had a bench
built in with a guard rail that divided the bench from the
stairs.  The guard rail was made up of two by fours running
over a series of spaced balustrades.

[4]  The stairs were made up of three steps without counting
the deck or the ground level as steps.  While the bench guard
rail ran along one side of the stairs, there was no handrail
running down the stairs.  Neither was there a guard or handrail
on the other side of the steps which was open to the lawn area.

THE ACCIDENT
[5]  The plaintiff says that she stepped from the deck down
onto the first step or tread.  She says her feet were firmly
planted on the tread.  She says she then paused to light a
cigarette and that while doing so says the tread started to
wobble in a fore and aft direction.  She says she reached out
with her right hand to grab the top of the railing which
wobbled.  She says she could not maintain a hold on the
railing, that she pitched left over the side of the stairs and
landed on her ankle.

[6]  No one witnessed the accident.  Brian Jackle took the
plaintiff to the hospital and says that when he returned he
looked at the stairs a few hours after the accident.  He saw a
tread on the stair loose and a broken triangularly shaped piece
of wood attached to the top stair tread.  He says the tread was
loose and just sitting on top of the stringer.  A two by four
had been nailed into the stringer from the inside and to Jackle
it appeared that the stringer had split at the nail line.  He
described the stringer as looking rotten and having a gray
color and he as well saw visible rust marks from the nails.

[7]  The defense urges the court to reject the plaintiff's
evidence as to how the accident occurred.  The defense argues
that if the tread failed as described by the plaintiff, one
would expect that she would have been thrown forward and not to
the side; the defense says further that one would also expect
her to have contacted the ground with some part of her anatomy
other than her left ankle.  Finally the defense says it is more
likely that what occurred was that the plaintiff was not
looking where she was going and that while lighting her
cigarette, she simply tripped and fell down the stairs.

[8]  In this case no one saw the plaintiff fall.  Only Brian
Jackle gave evidence as to the condition of the broken riser.
However based on the evidence of the plaintiff and Jackle, I
conclude that it is probable that the accident occurred as she
described.  Jackle's post-accident observations are consistent
with the plaintiff's evidence that the tread gave way.  While
the riser could have been damaged by the plaintiff's fall, I
accept the evidence of the plaintiff that the stair started to
wobble as she was standing on it and her description of how the
accident occurred.

LIABILITY
[9]  The plaintiff says her accident was caused by two defects
or unsafe conditions: (a) the absence of a handrail; and (b)
rot in the riser below the tread.

[10] I find that the plaintiff was a tenant in the house.
Although she and Brian Jackle never signed a tenancy agreement
I accept her evidence that she met with Mr. Yenkana about one
week after they moved in and that he agreed to the substitution
of herself and Mr. Jackle for Mr. Severeid.  Mr. Yenkana
confirmed in his evidence that such a meeting occurred.

[11] A landlord of residential property has a duty under s. 8
(now s. 10) of the Residential Tenancy Act, which reads:
8(1) A landlord shall provide and maintain
    residential premises and residential properties
    in a state of decoration and repair that
    (a)  complies with health, safety and housing
         standards required by law, and
    (b)  having regard to the age, character and
         locality of the residential property, would
         make it reasonably suitable for occupation
         by a reasonable tenant who would be willing
         to rent it.

[12] By s. 4(1), s. 8 is deemed to be a term of every tenancy
agreement.

[13] It is clear that by statute the landlord owed a duty of
care to the plaintiff.  The issue in this case is whether that
duty was breached.  This requires a consideration of the
relevant provisions of the Building Code to determine whether
the stairs were compliant, although it must be remembered that
at most a breach of the Building Code constitutes evidence of
negligence and does not give rise to a cause of action in and
of itself.

[14] The Building Code in Article 9.8.7.6 states:
Only 1 handrail is required for stairs having more
than three risers.

[15] The defense says that there were only three risers in this
case and hence a railing was not required.  However this
interpretation would mean excluding the step from the deck
level down to the first step of the stairs as well as the step
from the last step of the stairs onto the ground from Code
application.  I do not consider this to be the intention of the
Code.

[16] In my view the intention of the Code is that the
dimensions of the first and last steps in a set of stairs be
the same as all of the intermediate steps.  If the defense's
interpretation of the Code is correct this dimensional
consistency would not be required and I do not accept it.  I
find that this set of stairs had four "risers" and hence the
Building Code required one handrail.

[17] These stairs had no handrail.  In deciding whether the
lack of a handrail was a breach of the duty owed by the
landlord I must consider all of the surrounding circumstances
including prior incidents and/or complaints.  In this case
there were none.  None of the witnesses who testified
considered the stairs to pose any sort of a danger or hazard.
There was no evidence that there had been any accidents or
incidents of any kind involving these steps prior to this
accident.

[18] Leaving aside the failure of the riser due to rot, it is
doubtful that there would be any liability on the landlord for
the omission to install a handrail.  The Building Code breach
was minimal in the sense that had there been one less rise, no
railing would have been required.  In addition the stairs had
been used without incident or complaint for many years.  A
breach of the Building Code does not necessarily equate to
liability and in this case the relatively minor breach when
considered in the context of many years of uneventful use would
probably not be sufficient to make a finding of liability
against the landlord.

[19] The second complaint is the rot in the stairs.  There is
no evidence that the landlord had any knowledge of this
condition.  At best for the plaintiff's case, Mr. Yenkana
agreed on cross-examination that wood rots and that wood should
be inspected over time.  It is clear that his practice with
this house was to do repairs only when notified of the need by
his tenants.  None of the tenants ever complained about the
condition of the stairs and there were no incidents prior to
this accident.  The question then becomes whether the
deteriorating wood in the riser was an unsafe condition that
should have been known to the landlord.

[20] In Sulmona v. Serraglio (May 15, 1986), unreported,
B.C.C.A. Vancouver Registry No. CA001922 the court adopted the
trial judge's reasons dismissing the claim.  In Sulmona the
issue was whether the defendant occupier should have known the
dangerous condition into which a flight of stairs had fallen.
At p. 3 the court said:
 The defendant noticed water was able to seep
through the unpainted deck and that some of the
plywood decking was weathered and worn. However,
there was nothing to indicate the stairs would not
hold the weight of two men and a gas stove. The
plaintiff and the defendant had walked up the same
flight of stairs in order to pick up the stove. The
stairs had appeared stable. Furthermore, a wood stove
weighing in excess of the gas stove had been removed
and carried down that flight of stairs several months
earlier without a problem. Accordingly, there was no
reason for the defendant Serraglio to closely examine
the stairs, but even if he had done so he may not
have noticed the dry rot as it was under the top step
and not discernible without minute inspection.

 An occupier of premises is not an insurer, he
cannot guard against every eventuality.

[21] In the case at bar the stairs had been used for six years
without incident or complaint.  There is no evidence that
anyone knew of the weakened condition of the stairs prior to
the accident.  In my view the plaintiff would not succeed if
her case rested solely on the riser failure.

[22] However what I must consider is whether the failure to
have a handrail installed contrary to the Code when coupled
with the failure of the riser is sufficient to render the
landlord liable.

[23] In this case this means that the plaintiff must establish
a causal connection between the lack of a handrail and the
failed riser and her subsequent fall and injury.

[24] In Ellington v. Rodgers (March 27, 1986), unreported,
B.C.S.C. Victoria Registry No. 84/1501, a case was dismissed
when the court found that the fall had nothing to do with the
absence of a handrail.  In that case the fall started from the
top of the stairs and the plaintiff's theory was that had there
been a handrail, he would have been able to grasp it, stop his
fall and save his ankle.  The court found that the actual cause
of the fall had nothing to do with the absence of a handrail.
With respect to the plaintiff's contention that had there been
a handrail, he would have been able to get hold of it, the
court said at p. 4:
Several giant leaps of faith are required to reach
that conclusion. First of all, I must decide he would
have been able to get hold of the rail during the
course of the fall if it was there at the time. That
is far form certain. Second I must find on a balance
of probabilities that if and when he did manage to
grasp the rail, he would have been able to retain his
grasp, restrict his fall and prevent the injury to
his ankle. Again, this is a matter of some
speculation. Hence on the facts alone, he has an
uphill fight. I now turn to the law.

[25] In my view Ellington is distinguishable since in the case
at bar, the plaintiff was actually able to place her hand on
the top of the railing that was there and was unable to obtain
a secure hold on the top of the piece of wood that ran along
the top of the vertical balustrades.  That piece of wood was
not designed or intended to function as a handrail for the
steps and would have been much more difficult to grasp than a
properly designed handrail.

[26] In the case at bar I find that the plaintiff likely would
have been able to prevent her fall had such a properly designed
handrail been installed.  The cause of the fall and the
plaintiff's injuries was the rot in the riser which caused the
stair to give way coupled with the lack of a Code compliant
handrail which the plaintiff most likely would have used to
prevent her fall.

DAMAGES
[27] In the fall the plaintiff suffered a comminuted fracture
of the left tibia and fibula extending into the ankle joint.
At surgery on April 4, 1994 a closed reduction failed and the
foot was opened and reassembled with two K wires, a tension
wire band and a screw for the distal tibia.

[28] On August 10, 1994 the K wires and tension wires were
removed under anaesthetic.  The plaintiff was in a cast for 4«
months.

[29] The plaintiff says she has had ongoing complaints since
the last surgery.  In September 1997, Dr. Browne found some
tenderness in the malleolus, restriction on the flexion and
extension of the ankle, restriction of the motion of the sub-
talar joint, with 2/3 the inversion of her right ankle.  He
opined that the plaintiff's ongoing pain was likely caused by
arthritis with treatment being either joint replacement or
joint fusion.  He described the problem at that time as mild to
moderate.

[30] In an updated report of August 24, 1998 Dr. Browne reports
the plaintiff's advice to him that her symptoms had worsened.
She reported pain on the outside of the ankle and that the more
she used the ankle the greater the pain.  He concluded that
having regard to the seriousness of the original injury, the
scarring problems and sub-talar problems that the plaintiff was
more quickly developing to where she needed further treatment
in the form of joint replacement or fusion.

[31] At present the plaintiff is able to work but not in a job
requiring her to be on her feet for an extended period of time.
Her ankle is constantly sore and she has significant pain and
restrictions.

[32] As did Dr. Browne, I found the plaintiff to be credible in
describing her symptoms and I accept her evidence.  I would
award to the plaintiff for non-pecuniary damages for pain and
suffering $45,000.

PAST WAGE LOSS
[33] The plaintiff had employment earnings of $3,600 in 1990.
She had no employment earnings from 1991 to 1993 having decided
to stay out of the workforce to assist in the establishment of
her new family with Bruce Jackle and the integration of their
respective children.

[34] At the time of her injury she had been working at
Codfather's restaurant for two weeks and had earned $884 in
that period just before the accident.  In January 1994 she
worked for the Coachman restaurant for some five weeks.  Prior
to the accident she had intended to train as a first aid
attendant.

[35] In 1994, 1995 and 1996 she reported employment earnings
averaging $3124 per year. From November 1995 to July 1996 she
worked at the George Dawson Inn and earned $7,203 during that
6« month period.  She is currently employed by the Society for
Community Living as a care worker and her 1997 earnings were
$12,237.

[36] In my view the plaintiff's employment history is too
irregular to justify a past wage loss award based on projected
earnings that presume a regular employment pattern that was not
demonstrated pre-accident.  However it is clear that she has
suffered some reduction in her ability to earn income since the
accident.  After considering her employment history both before
and after the accident I conclude that an appropriate award for
the plaintiff's past loss of income to the date of trial is
$10,000.

FUTURE WAGE LOSS/LOSS OF OPPORTUNITY
[37] I am satisfied that the ongoing difficulties being
experienced by the plaintiff will be a restriction to her
future ability to work.  Given her pre-accident work history I
would award damages for her future wage loss of $20,000.

COST OF FUTURE CARE
[38] The parties have agreed that damages under this head
should be set at $12,000.




SUMMARY
[39] The plaintiff will recover damages as follows:
    Non-pecuniary:           $45,000
    Past wage loss:          $10,000
    Future wage loss:        $20,000
    Cost of future care:     $12,000


    TOTAL                    $87,000

[40] Pending any further submissions from counsel, the
plaintiff will recover costs on scale 3.


                                              "D. Brenner, J."

Filename:

J:/jdb-txt/sc/98/18\s98-1844.txt