DATE: 20051107

DOCKET: C41528

COURT OF APPEAL FOR ONTARIO

RE:

SHIRLEY SPURRELL (Plaintiff/Appellant) – and – 1069040 ONTARIO LIMITED (Defendant/Respondent)

BEFORE:

LASKIN, ROSENBERG and LaFORME JJ.A.

COUNSEL:

Andrew Felker

for the appellant/plaintiff

Christopher Ashby

for the respondent/defendant

HEARD & RELEASED ORALLY:

November 3, 2005

On appeal from the judgment of Justice J. E. Sheppard of the Superior Court of Justice dated February 13, 2004.

E N D O R S E M E N T

[1] This is an appeal from a judgment dismissing the appellant’s claim for damages against the respondent for negligence and breach of duty pursuant to the Occupier’s Liability Act. The appeal is limited to the issue of liability.

[2] The action arose out of a fall by the appellant while working as a bartender on a boat owned by the respondent. The appellant fell while descending a ladder on the boat causing her to break her left leg. The trial judge found that the appellant “was the author of her own misfortune” and dismissed her claims.

[3] This was a credibility case in which the trial judge, after hearing all the evidence, preferred the evidence of the respondent to that of the appellant. He provided ample reasons for doing so and made no palpable and overriding errors in this regard. Significantly, he disbelieved the appellant’s evidence on the type of footwear she was wearing when she assumed the risk of stepping down the ladder and he accepted the evidence of the respondent on this important issue. The evidence of the respondent’s witnesses was consistent on the important issue that the appellant’s shoes were leather. This evidence was also consistent with the appellant’s statement to the adjuster.

[4] The trial judge demonstrated that he was aware of the law of negligence and the duty of care pursuant to the Occupier’s Liability Act. In applying it, he found that there was no negligence on the part of the respondent and that the respondent had not breached the duty of care under the Act.

[5] We can find no reason to interfere with his conclusions.

[6] The trial judge, after dismissing the action, correctly proceeded to decide the issue of damages. In doing so, however, the trial judge assessed the appellant’s contributory negligence at 75%. The appellant submits that this must therefore mean that the trial judge found the respondent 25% negligent. Although somewhat awkwardly stated by the trial judge, we agree with the respondent that the trial judge was merely reflecting that if he had found the respondent liable, it would have only been to the extent of 25%. Moreover, there is nothing in the trial judge’s findings that support any negligence on the part of the respondent. In our view, this does not amount to an error by the trial judge.

[7] For these oral reasons, the appeal is dismissed with costs fixed at $3,000 inclusive of disbursements and Goods and Services Tax.

“John Laskin J.A.”

“M. Rosenberg J.A.”

“H.S. LaForme J.A.”