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.