In this slip on ice personal injury case appeal (Foley v. Imperial Oil Limited,2011 BCCA 262) the injury claimant was injured at a car wash at an Esso service station in North Vancouver, British Columbia. the injury claimant slipped on a small patch of ice near the car wash and fell backwards hitting his head and suffering a serious dislocation of his right kneecap. There were no warning signs or cones in the area of the car wash exit to warn customers of the risk of ice.
The trial judge found that the car wash had breached their duty to take reasonable care in the circumstances to ensure that the injury claimant would be reasonably safe in using the car wash. The Court of Appeal upheld the decision making important comments about the evidentiary burden on occupiers such as gas stations and car washes.
In paragraphs 42 and 47 of this injury case the Court of Appeal found that , “The presence or absence of warning signs is a relevant factor when considering liability…In “slip and fall” cases involving the reasonableness of a maintenance program, while the burden of proof rests with a plaintiff to demonstrate that the defendant breached the relevant standard of care, there remains an evidentiary burden on the defendant to rebut any reasonable inferences that might be drawn from the evidence as to whether the defendant has taken reasonable care, in the circumstances, to safeguard the plaintiff who enters onto its property.”
The concept of “unusual hazard” was left to flap in the wind with the ambivalent comment of the Court at para 34, “I understand her use of that term to have been in the context of describing the increased or special risk of ice formation around the car wash exit (of which the appellants were specifically aware) as distinct from the “usual danger” of ice formation on other parts of the premises.” Posted by Mr. Renn A. Holness