In this slip and fall serious personal injury claim (Jack v. Tekavec,2011 BCCA 464) the injury claimant fell three stories after leaning against a rotted, poorly repaired balcony railing. The owner and manager of the apartment complex was found fully at fault in negligence as an occupier. The at fault owner and manager appealed the judgment awarding $322,000.00 in personal injury compensation against him under the Occupiers Liability Act, R.S.B.C. 1996, c. 337.
The owner says he did not receive a fair trial because the court did not give the unrepresented party an opportunity to re-serve a subpoena to a material witness with the appropriate conduct money. The owner had no lawyer at trial and the trial judge provided considerable assistance providing him with a “memorandum to self-represented litigants” summarizing procedures at trial. He also provided the owner with copies of those provisions of the Supreme Court Civil Rules, B.C. Reg. 168/2009, regarding subpoenas; specifically, Rule 12-5, which included Rule 12-5(35):
A person served with a subpoena is entitled to tender of the proper fees at the time of service.
The owner was encouraged on numerous occasions by the court to retain counsel. He chose not to heed that advice and went to court without a lawyer.
The Court of Appeal acknowledged the significance of a Notice to Admit that had been served on the owner. The owner did not respond in time so the facts were deemed admitted. The damaging facts admitted were:
- The owner knew prior to the Accident that the subject balcony guardrail was broken.
- The owner knew that the tenant had tried to fix the subject guardrail prior to the Accident.
- The owner knew that the tenant had fixed the guardrail improperly prior to the Accident.
- The owner knew that the subject guardrail had been fixed improperly by the tenant and had time to see to repairing the guardrail properly prior to the Accident if he so chose.
- The owner did not attempt to fix the subject guardrail nor did he give notice to the tenant that he intended to enter the apartment to fix the subject guardrail prior to the Accident.
- The owner knew before the Accident that guardrails are on balconies to keep people safe while using the balcony, specifically to keep them from falling off the balcony.
- The owner knew before the Accident that the subject balcony guardrail was unsafe.
- The subject balcony ii three stories from the ground which is approximately 50 or 60 feet.
The Court of went on to state that “The landlord’s knowledge of the dangerous state of the balcony would have been sufficient evidence to ground liability…”
This case is an example of the importance of having a personal injury lawyer working for you, especially when you go to trial. The failure to respond to the Notice to Admit on time may have been the difference between winning and losing the case. Posted by Mr. RennA. Holness