In this falling injury case(Etson v. Loblaw Companies Limited (Real Canadian Superstore),the injury claimant tripped over the corner of a wooden pallet in Abbotsford Real Canadian Superstore, fell and broke her hip. She required surgery to pin her hip together but within nine months the hardware failed and she had to have two further operations.
The injury claimant brought this lawsuit under the Occupiers Liability Act, R.S.B.C. 1996, c. 337, and in negligence. She says that the Superstore created a hazard by placing a defective pallet containing misplaced store stock in the middle of a shopping aisle and therefore failed to take reasonable precautions to protect her against the risk of harm. Superstore admits that it was at all times an occupier of the premises but disputes liability. The amount of injuries were also put in issue by Superstore .
The lawyer for Superstore argued that Superstore did not breach its duty of care because the pallet was not a foreseeable danger and the claim fails on a causation analysis. The lawyer for Superstore also claimed that the injury claimant was contributorily negligent in failing to keep a reasonable lookout for her own safety and that she bears most of the fault for her injuries.
The judge found that the claimant’s accident could have been avoided if the Superstore had removed the split board and stacked the detergent buckets in a more uniform fashion along the edge and corner of the pallet. As aptly pointed out by the judge,
“Moreover, the damaged condition of the pallet and the rather haphazard display of product could easily have been prevented had there been a simple visual inspection when the pallet was installed. There is no evidence that there was any visual inspection of this pallet by any of the defendant’s staff. In my view, had someone looked at this pallet, it would have been fairly obvious, and thus reasonably foreseeable, that a pallet in the condition of this one could have constituted a tripping hazard to customers. The ease or difficulty and the expense with which an unusual danger could have been remedied is a factor to consider in assessing whether a defendant has fulfilled its duty of care under s. 3 of the Occupier’s Liability Act: see MacLeod v. Young,  B.C.J. No. 2108 at para. 8 (S.C.).”
The injury claimant did not however escape some blame for her injury. The court went on to find that the accident could have been avoided if the claimant had paid more attention to where she was walking. Had the claimant looked down at her feet, even momentarily, before she began to turn the corner, she would have seen that she was too close to the corner of the pallet. Accordingly, the judge found that she did not take reasonable care for her own safety.
The Negligence Act,R.S.B.C. 1996, c. 333, requires the court to apportion the degree to which each party to the lawsuit was at fault. In the circumstances of this case the trial judge apportioned fault 50/50 between the injury claimant and the Supertstore.
The court awarded the claimant the following:
Pain and Suffering $90,000
Out of Pocket expenses $7,027.80.
There was a verdict for the claimant in the amount of $48,513.90, which is 50% of the amount awarded. Posted by Mr. Renn A. Holness
Issue: Should Superstore have to pay punitive compensation for this type of injury ?