COURT FILE NO.: 68505/10

DATE: 03-12-12

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Gregory van Staveren Plaintiff – and – Coachlite Roller Gardens Inc. Defendants

Andrew Elrick, for the Plaintiff
Daivd Powrie, for the Defendant

HEARD: October 2, 3, 4 and 5, 2012

McKelvey J.

Reasons for judgment

INTRODUCTION

[ 1 ] This case involves an unfortunate accident suffered by the plaintiff while he was roller skating at the defendant’s premises during March break, 2010. The plaintiff, Mr. van Staveren, is 43 years old and lives in Courtice with his wife, Peggy, and his 3 daughters. On March 17, 2010 Mr. van Staveren, together with his wife, 3 children and a number of other children and family friends, decided to go roller skating at a roller skating rink operated by Coachlite Roller Gardens Inc. (“Coachlite”). They spent most of the afternoon at the roller skating rink. During the course of the afternoon, however, Mr. van Staveren suffered a fall which resulted in a fracture to his elbow. The plaintiff is seeking general damages, as well as a claim for lost income. No other damages are being claimed in the action.

BACKGROUND

[ 2 ] Mr. van Staveren took a one-week holiday from his job as a cook for March break in 2010 in order to spend time with his family. March 17 th was a Wednesday. His wife had made arrangements to go to the roller skating rink operated by Coachlite. They planned to have a group go with them. This included some friends from church, as well as some other children from the neighbourhood. The plaintiff’s oldest daughter brought a friend named Bailey Pegles to the rink.

[ 3 ] Mr. van Staveren had not been to the defendant’s roller skating rink prior to March, 2010. He had, however, roller skated before in his teenage years and in his 20s. He grew up in Whitby and started to go to a roller skating rink in Whitby at about age 12. He later went to this rink quite frequently because his brother started to work there from the point when the plaintiff was around age 14. He became an experienced skater. He never took lessons, but knew how to skate backwards and was able to do other manoeuvres on roller skates. He was used to “quad” skates, which are skates which have four wheels on each boot. Mr. van Staveren had not, however, roller skated for quite a few years prior to the incident on March 17, 2010.

[ 4 ] Mr. and Mrs. van Staveren and their guests arrived at the roller skating rink at around 1:00 p.m. His wife went to the cashier’s window and paid for the session of skating. No one had to sign anything and the plaintiff did not notice any signs as he was going into the rink.

[ 5 ] The group had to rent roller skates. Mr. van Staveren went to the skate counter and got some skates. The rink was quite busy at the time, and evidence from the defendant indicated that there were up to about 80 skaters in the facility that afternoon.

[ 6 ] Mr. van Staveren brought helmets for his daughters. He did not bring or wear any protective equipment for himself or his wife.

[ 7 ] Mr. van Staveren helped his youngest daughter with her skates and then put on his own skates. He then went on to the roller skating floor. The floor is rectangular in shape. It runs north/south. It is approximately 155 feet long and approximately 80 feet wide. All roller skaters are expected to go around the arena in a counter-clockwise direction.

[ 8 ] Mr. van Staveren went out onto the rink with his youngest daughter. He noticed that portions of the floor were wet and that there were some pails on the floor. There were a number of orange pylons (both large and small) surrounding each bucket.

[ 9 ] Mr. van Staveren suffered a fall at around 3:00 p.m. that afternoon. He testified that he had been skating with his oldest daughter and her friend, Bailey. He knew that Bailey was a good ice skater. He talked to Bailey about skating backwards. Mr. van Staveren explained that he had skated backwards at least 8 times that day before the fall. He stated that due to his past experience he had no difficulty in skating backwards. He also testified that he was not told to refrain from skating backwards and so he had concluded that this was a permissible activity.

[ 10 ] Bailey was somewhat apprehensive about skating backwards. As a result, Mr. van Staveren decided to show her how easy it was. There is an issue as to exactly how the accident occurred, which will be discussed in further detail. However, Mr. van Staveren stated that as he attempted to demonstrate to Bailey how to skate backwards he fell. As he fell, he put out his left arm which struck the floor. At the time of the incident Mr. van Staveren did not know what had caused the fall. Mr. van Staveren stated that the incident happened very quickly and he went flying. He was embarrassed after the incident because he had just told Bailey how easy the manoeuvre was.

[ 11 ] After the fall Mr. van Staveren told his wife that he was fine although his wrist was bothering him. He did not realize he had a serious injury until after the family returned home that evening. At that point his arm started to bother him. He attended at hospital that evening where a fracture in his elbow was diagnosed and his arm was placed in a cast.

[ 12 ] The plaintiff maintains in this action that his fall was caused as a result of water on the floor, as well as his hitting one of the small orange pylons. The condition of the premises at the time of the fall, as well as the mechanism of the plaintiff’s fall, were major issues that were addressed in the evidence at trial.

WITNESSES CALLED AT TRIAL AND GENERAL FINDINGS WITH RESPECT TO CREDIBILITY

[ 13 ] I found that the plaintiff, Gregory van Staveren, was generally a very reliable witness. He candidly acknowledged facts which were against his own interest. For example, he freely acknowledged that he did not know what had caused the fall. He did not recall seeing any water on the floor or an orange pylon subsequent to the fall. He also freely acknowledged in his evidence in chief that the condition of his elbow had substantially improved after about 6 weeks. He promptly returned to work at this point in time and confirmed that he had not missed any further work as a result of the problems with his arm. There was an inconsistency between his evidence at trial and his discovery evidence with respect to the location of the fall and whether he had completed his transition to going backwards at the time of the fall. This will be discussed further in these reasons. My impression, however, was that Mr. van Staveren was very fair and reliable in giving his evidence, and I am prepared to place significant weight on his observations generally of the condition of the roller skating arena prior to the fall. His evidence as to how the fall occurred is less reliable given his evidence that he did not know what had caused the fall, and for reasons which I will refer to later.

[ 14 ] Peggy van Staveren is the plaintiff’s wife. She is 42 years old and has been married to the plaintiff for 20 years. I also found her to be a credible witness. There were no major inconsistencies in her evidence, and she appeared to give her evidence in a straightforward manner.

[ 15 ] The plaintiff also called as a witness Ms. Diane Passey. Ms. Passey is a friend of the plaintiff’s and was part of the group that attended with the plaintiff at Coachlite on March 17 th . She did not witness the plaintiff’s fall as she left earlier that afternoon. However, in her evidence she described seeing water on the floor. She described the “puddle” as being 4 to 5 feet long, and 2 to 3 feet wide, and a depth of one-half to one inch. This evidence is not consistent with the evidence given by any other witness at trial. It strikes me that if there was a problem of the magnitude described by Ms. Passey that this would have been apparent to everyone, including the plaintiff. I have therefore concluded that there is good reason to question the reliability of her evidence.

[ 16 ] Mr. Heino Themann and his wife, Yvonne Keoghan, are the owners and operators of Coachlite. Mr. Themann was the individual in charge of monitoring the roller skating floor for the afternoon session on March 17 th . I had serious concerns about his evidence. There were numerous inconsistencies between Mr. Themann’s evidence at trial and his discovery evidence. For example Mr. Themann was questioned at his Examination for Discovery about the history of water dripping onto the floor of the arena prior to the plaintiff’s accident. In his Discovery evidence he stated as follows:

Question 178: In the 7 years and a month that this rink had been open, approximately how many times had there been situations where water had dripped from the ceiling onto the floor of the roller rink?

Answer: I don’t keep track of it, I have no idea.

Question 179: More than 10?

Answer: Oh, more than 10, yeah.

Question 180: More than 25?

Answer: Yeah but it’s always been marked off.

Question 181: Thank you. So, the answer is, yes, more than 25?

Answer: Yes.

[ 17 ] In a letter dated June 13, 2012 defence counsel wrote a letter clarifying some of the answers given by Mr. Themann at his Examination for Discovery. With respect to the above noted questions the defence counsel advised as follows:

These questions were in respect of a number of occasions that there had been a roof leak. Mr. Themann advises that these numbers were in respect of the entire building, sometimes in the office area, DJ booth, concession area, etc. He estimates that the actual number of times that there had been a leak on the floor is far fewer.

[ 18 ] Mr. Themann attempted to explain in cross examination the clear discrepancy between his answers at Examination for Discovery and the new information which he provided. I did not find this explanation credible on what I considered to be an important issue.

[ 19 ] Another example of an inconsistency in Mr. Themann’s evidence is the evidence he gave at trial that he made several announcements during the course of the afternoon session which advised skaters that backwards skating was prohibited during the afternoon session. However, in his evidence at Examination for Discovery, Mr. Themann testified as follows:

Question 250: Was there a rule in place on March 17, 2010 prohibiting skaters from skating backwards?

Answer: No.

[ 20 ] Mr. Themann attempted to justify the change in his evidence by saying that his Discovery evidence referred only to the sign describing the rules at Coachlite. However, in my view his answer at Discovery was unequivocal and not limited to the posted signs. I therefore found there was a significant inconsistency in his evidence at trial.

[ 21 ] I have concluded that there are serious credibility issues about Mr. Themann’s evidence which need to be taken into account when drawing any conclusions about the facts in this case.

[ 22 ] Similarly, I have concerns about the evidence of Yvonne Keoghan. She sat in on the Examination for Discovery of her husband which took place on April 19, 2011. She therefore was privy to all of the evidence given by her husband at his Examination for Discovery. Mr. Themann was questioned as to his wife’s presence on March 17 th at Coachlite. His evidence on this issue was as follows:

Question 57: What time approximately did you arrive?

Answer: Well, I usually get in at – during that – I would have been there all morning probably 9 o’clock.

Question 58: Just you or Ms. Keoghan as well?

Answer: She wasn’t there that day.

It is significant to note that no attempt was made to correct that answer until the letter from the defence counsel dated June 13, 2012 at which point the following statement was made:

Mr. Themann wishes to correct this answer. Ms. Keoghan was not downstairs at the rink level during the session that your client attended. Ms. Keoghan was at the premises but in the office doing paperwork that day. She had been on the floor prior to the session and at the end of the session. Ms. Keoghan also placed pylons and buckets prior to the afternoon session.

Ms. Keoghan in her evidence stated that she told her husband’s lawyer promptly about the fact that a number of her husband’s answers were incorrect at Examination for Discovery. Nevertheless, I am concerned that there was no attempt to correct this information for well over a year.

[ 23 ] In addition there were significant differences between Ms. Keoghan’s evidence and that of her husband as to the amount of water on the floor on March 17 th . In her evidence Ms. Keoghan testified that she put two tall buckets in the northeast corner of the rink. She stated that she checked the floor several times and there was never any water in the bucket. This differed from her husband’s evidence. Mr. Themann testified in his evidence that he could see splashes of water in the buckets that had been placed at the north end of the floor. I have therefore concluded that Ms. Keoghan’s evidence should be viewed with caution.

[ 24 ] Two additional witnesses were called by the defence. The first witness was Cynthia Collins who was a regular customer at Coachlite. In her evidence she stated that there was no water on the floor or in the buckets. She also had a very detailed recollection of observing the plaintiff’s fall. The existence of Ms. Collins as a witness was disclosed by defence counsel in a letter dated June 26, 2012. In that letter defence counsel states with respect to Ms. Collins, “She does not specifically recall witnessing the fall of the plaintiff”.

[ 25 ] Ms. Collins attempted to explain this significant discrepancy in her evidence by stating that she only connected a fall she observed on the afternoon of March 17 th with the plaintiff when she was shown a photograph of the plaintiff. I did not find her explanation credible, especially when her testimony confirmed that there was no evidence of any injury at the time and her identification must have taken place well after a year following the event. In addition, I find it hard to accept she would not have made the connection between the plaintiff’s fall and what she says she observed when she was questioned by defence counsel prior to preparation of his letter of June 26, 2012. In the circumstances I reject her evidence entirely.

[ 26 ] Another witness called by the defendant was Mike Christopher. Mr. Christopher testified that he attended at Coachlite with his son on March 17 th in the afternoon. He also in his evidence gave a detailed recollection of the accident. However, Mr. Christopher stated that he spoke to Mr. Themann and Ms. Keoghan less than a week after the plaintiff’s case. He overheard them talking about the lawsuit and says he told them at that time about his observations. He further stated that he kept in touch with the owners over the following 4 to 6 months. He was told about 3 weeks beforehand that there would be a trial. He stated that he lost touch with the two owners for the next couple of weeks because his cell phone service went down and he only called them again on the evening of October 3 rd to check the status of the trial.

[ 27 ] In his evidence at trial Mr. Themann testified that once they found out about the plaintiff’s claim they asked some of the regulars at Coachlite if they saw the incident. He stated that no one saw anything relating to the plaintiff’s fall. Following this evidence I did raise an issue with defence counsel with respect to the extent to which Mr. Themann’s evidence on this point would be considered hearsay. However, it was agreed that this evidence would be properly receivable going to Mr. Themann’s state of mind at the time. Needless to say, Mr. Christopher’s evidence about his contact with the owners of Coachlite is very surprising in light of Mr. Themann’s evidence at trial. It is also significant that no mention was made by defence counsel in his letter dated June 26, 2012 in which he advised plaintiff’s counsel that, “We have identified – and may elect to also call as witnesses – the following individuals”. Mr. Christopher’s name was not on the list of witnesses who had been identified.

[ 28 ] No adequate explanation was given for these inconsistencies and I therefore reject the evidence of Mr. Christopher.

APPLICABLE LAW RE: OCCUPIER’S LIABILITY

[ 29 ] There is no issue about the fact that Coachlite was the occupier of the premises where the plaintiff’s fall occurred. The obligations of Coachlite are set out in the Occupier’s Liability Act. R.S.O. 1990, Chapter 0.2. Section 3(1) sets out the duty of care which is owed. This section states as follows:

An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

[ 30 ] Section 4(1) is also relevant to a consideration of the defendant’s obligations. This section states:

The duty of care provided for in subsection 3(1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.

[ 31 ] The leading case on the interpretation of this legislation is the Supreme Court of Canada decision in Waldick v. Malcolm, [1991] 2 S.C.R. 456. In that decision the court notes that the goals of the Act are to promote positive action on the part of occupiers to make their premises reasonably safe. The court also notes that it was the clear intention of the Act to replace, refine and harmonize the common law duty of care owed by occupiers of premises to those who come on the premises. In Canadian Tort Law by Allen Linden and Bruce Feldthusen (9 th Edition 2011) at page 731 the authors note that:

The Act assimilates occupier’s liability with the modern law of negligence. The duty is not absolute, and occupiers are not insurers liable for any damages suffered by persons entering their premises. Their responsibility is only to take “such care as in all the circumstances of the case is reasonable”. The words “in all the circumstances of the case” invite an analysis of what constitutes reasonable care that is very specific to each situation.

[ 32 ] The duty of care owed as an occupier was recently considered in the case of Dhaliwal v. Premier Fitness Clubs Inc., [2012] O.N.S.C. 4711. In commenting on the Waldick decision the court noted that while the Occupier’s Liability Act imposes an affirmative duty on occupiers to make their premises reasonably safe, this duty is not absolute. It is recognized that occupiers are not to be regarded as insurers who are liable for any damages that may be suffered by persons entering on their premises. The standard is one of reasonableness, which “requires neither perfection nor unrealistic or impractical precautions against known risks”. It is apparent that each case will turn on its own facts, and that the trier of fact will be required to determine what standard of care is reasonable in the circumstances, and whether that standard of care has been met in a particular case.

[ 33 ] The Waldick case is also helpful in that it deals with the question of Section 4(1) of the Act and the extent to which knowledge of the risk on the part of the victim will excuse liability on the part of the occupier. In the Waldick case the court narrowly defined how this exception would apply. It will arise only where the defendant assumes no responsibility to take due care for the safety of the plaintiff and that the plaintiff did not expect him to. As noted by the court in the Waldick case:

Rare may be the case where a visitor who enters on premises will fully know of and accept the risks resulting from the occupier’s non compliance with the statute. To my mind, such an interpretation of Section 4(1) accords best with general principles of statutory interpretation, is more fully consonant with the legislative aims of the Act, and is consistent with tort theory generally.

[ 34 ] In Canadian Tort Law, supra at page 734 it is noted that Section 4.1:

Reserves the defence of volenti non fit injura which requires actual or implied consent by the entrant to accept the risk of injury. Mere knowledge of the risk by the visitor is not sufficient to support this defence.

DID THE DEFENDANT SATISFY ITS OBLIGATIONS UNDER SECTION 3(1) OF TAKING REASONABLE CARE

[ 35 ] The danger of water on a terrazzo floor for people using roller skates should be obvious. It was clearly recognized by Mr. Themann in his evidence. He testified that food or drink is not permitted on the skating floor as it could be “hazardous”. In addition, Coachlite tried to control the accumulation of water on the floor by the use of buckets and orange pylons.

[ 36 ] The evidence at trial leaves little doubt that there was a longstanding problem with water dripping onto the floor of the roller skating rink. Mr. Themann acknowledged in his evidence that the problem goes back to 2003 when he and his wife purchased the property and opened their business. The problem was a continuing and regular one. Mr. Themann’s evidence from Discovery as noted above was that it had occurred over 25 times although he tried to pull back from this evidence at trial. There is strong evidence, however, that this was a persistent and repeated occurrence. This is reflected by the fact that Coachlite prepared printed signs which it posted on days when water accumulated on the floor. These signs were used to alert customers to the presence of water dripping and advised customers to stay clear of the pylons. The persistent nature of the problem is also reflected in the fact that the business had pylons and buckets readily available to deal with dripping from the roof when it occurred.

[ 37 ] Mr. Themann described the steps that he took to try and deal with the roof problems. These consisted of homemade repairs. There was never a professional roofer retained to perform repairs or install a new roof. Mr. Themann’s rationale for not calling in professional help was that flat roofs will always leak and there was therefore no remedy which could resolve the problem. I do not place any weight on this evidence given that Mr. Themann has no experience as a roofer. The evidence from both Mr. Themann and his wife is that the roof would develop leaks in different spots from time to time and that he would try to address the leaks on an ad hoc basis. Given the serious safety issues associated with the presence of water on the floor and in light of the fact that this problem had persisted for approximately 7 years at the time of the plaintiff’s accident, I have concluded that Coachlite’s failure to deal with the problem of the leaky roof was not an adequate response in the circumstances.

[ 38 ] Similarly, I have concluded that Coachlite’s response when dripping occurred was not adequate. The posting of a notice to warn users of some water dripping and to stay clear of the pylons was not adequate. Mr. Themann was well aware of the fact that users of the premises would from time to time kick the pylons away from their designated location. He described how he would try to go back on the floor from time to time to reposition the pylons. The problem of the pylons moving had 2 serious consequences for users of the facility. First, moving of the pylons would remove the demarcation line alerting users to the presence of water on the floor. Second, the pylons themselves when moved could cause a tripping hazard to customers on the floor.

[ 39 ] For the above reasons I find that Coachlite was in breach of its obligations under Section 3(1) of the Occupier’s Liability Act. In addition, there are serious issues about the response of Coachlite to the water problem on the day of the incident which I will address later in these reasons.

[ 40 ] While the defendant may be in breach of its obligations under the Act there remains a major issue as to whether this breach was causally related to the plaintiff’s fall.

[ 41 ] The defendant refers to the Supreme Court of Canada decision in Clements v. Clements [2012] S.C.C. 32. In this case the Supreme Court of Canada reaffirms the test for causation is the “but for” test. As noted by the court:

The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury – in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

[ 42 ] The causation issue requires a careful consideration of the evidence relating to not only the state of the floor, but also the circumstances surrounding the plaintiff’s fall.

[ 43 ] With respect to the state of the floor, it is beyond question that there was a problem with dripping water on March 17 th that was apparent as soon as Mr. Themann and Ms. Keoghan (if she did attend that day) arrived at work in the morning. This is reflected by the fact that buckets and pylons were placed out on the floor. There is differing evidence as to the location of the buckets and the pylons. However, it is clear even from the defence evidence that there was a problem at the north end of the floor. Mr. Themann in his evidence described seeing a thin layer of water on the bottom of the pails as the day progressed. He also noticed dampness in the south end where there was a pylon placed. On several occasions during the day he gave this area of the floor a wipe to dry it.

[ 44 ] The evidence of Mr. van Staveren is that there were two pails at the north end of the floor. One on the east side and one on the west side. He testified that the floor on the rink was wet in the northeast area and he told his children to stay clear of the pylons in that area.

[ 45 ] The evidence of Peggy van Staveren is that there were white pails on the rink. One was at the north end, one at the south end and one on the west side closer to the south. She also saw some water pooling on the floor in the north end near the pail. She looked at one of the buckets in the north end and saw that it contained water. The water covered the bottom of the pail. She also saw water at the north end of the rink near the pail. Some of the water was outside of where the pylon was located, meaning that it was in an area where you could expect customers to be roller skating.

[ 46 ] I conclude that there was a problem with dripping water at the time of the afternoon session on March 17 th . The problem was most severe at the north end of the floor towards the east side of the floor. It is unreasonable to believe that the one or two pails that were placed in this area would capture all of the dripping water. This is because the drips were coming from the roof which would be a considerable distance above the floor and the uncertain nature of a roof leak. I conclude that there would be at least some variation in the path of the water as it dropped from the roof above. I therefore accept the evidence of Ms. van Staveren that there were water pools about the size of a loonie or toonie around the buckets and pylons in and around the northeast area of the floor. I further accept her evidence that some of the water pools were outside the area marked by the pylons.

[ 47 ] I have considered whether the steps taken by the defendant to deal with this situation on March 17 th were adequate. In my view they were not. The defendant clearly understood the danger posed by water on a floor where customers would be travelling quickly with roller skates which by their very nature put an individual at risk of falling. It is apparent that in such a situation there was a critical need for careful monitoring. There was, however, no member of the Coachlite staff who was assigned to be skating on the floor to monitor the areas of concern and to retrieve the pylons which the defendant knew would likely be dislodged by patrons who were roller skating that afternoon.

[ 48 ] Mr. Themann testified that he kept surveillance on the floor by patrolling along one side of the floor near the DJ booth. He also stated that he checked the areas affected by the leak on various occasions during the day and went out to retrieve pylons as soon as he became aware that they were dislodged. In my view, this was an inadequate response to the problem. It is clear that Mr. Themann would not be able to observe a small amount of water which might accumulate on the floor and which would not be visible from his vantage point a good distance away. Thus, he left open the possibility that there would be an accumulation of water on the floor which could go undetected for a significant period of time. Recognizing the risk associated with the presence of water on the floor this was an unacceptable response. The cost associated with having a staff person skating on the floor continuously would not have been an onerous expense.

[ 49 ] In addition, Mr. Themann had other responsibilities which he was required to attend to that day including operating the DJ booth, as well as general management of the operation. This limited in a significant way the amount of time he could spend on surveillance of the floor. It meant that if a pylon was dislodged it might not be noted and returned to its proper place. In his evidence at trial he stated that from time to time customers using the floor would move back dislodged pylons. This would suggest it was not unusual for there to be a delay in taking corrective action after pylons were moved away from their original placement.

[ 50 ] I have therefore concluded that there was a general problem with water dripping at the north end of the floor which was particularly acute on the east side of the floor. In addition, there was a problem with pylons being kicked or moved after being placed around a water bucket or leak. The steps taken by the defendant to deal with these problems were inadequate and the result was a hazardous situation. This was, in effect, an accident waiting to happen.

[ 51 ] There were 4 witnesses who testified at trial as to how the accident occurred. For the reasons given above, I have placed no weight on the evidence of Ms. Collins or Mr. Christopher. Mr. van Staveren candidly acknowledged that he did not know what caused his fall. While I am satisfied that he gave his evidence to the best of his ability, there were some inconsistencies which lead me to question the reliability of his evidence on this issue. For example, in his evidence in chief he testified that he was skating with his oldest daughter and her friend towards the northeast corner. He described how he lifted his left foot, which is necessary to complete the turn to going backwards. As he put his left foot on the ground he stated that he fell backwards and put out his left arm.

[ 52 ] On cross examination Mr. van Staveren was referred to his discovery transcript which indicates that he fell as he was coming out of the northwest corner of the skating rink and that his fall occurred prior to completion of his transition to going from frontwards to backwards. These inconsistencies lead me to conclude that the most reliable evidence as to how the fall occurred comes from the plaintiff’s wife, Peggy van Staveren.

[ 53 ] Ms. van Staveren described the fall. She was travelling on the east side of the rink following her husband who was just ahead. She saw her husband talking to her oldest daughter and her friend. Her husband started to skate backwards. She saw his right foot hit a pylon. He stopped and fell backwards. She also made reference to the fact that there was some water track marks and evidence of water when she went to help her husband up after his fall. She described the pylon which her husband hit as one of the small pylons which had been moved from its location close to the bucket in the northeast area of the floor. She agreed that the pylon was bright orange and very visible. She had no difficulty in seeing it.

[ 54 ] Ms. van Staveren’s evidence was credible in my view. There were no major inconsistencies in her evidence. Her evidence was not seriously undermined on cross examination.

[ 55 ] The defence argues that an adverse inference should be taken based on the fact that the plaintiff failed to call his daughter Victoria van Staveren and her friend Bailey Pegles to give evidence as to how the accident occurred. The defendant has not referred to any specific authority in support of its position in this regard. I am not prepared to make an adverse inference in the circumstances of this case. The information from both the plaintiff’s daughter and Bailey Pegles would have been available to both parties through the discovery process, and either party could have taken steps to introduce that evidence at trial. In addition, there was no evidence at trial with respect to the availability of these witnesses.

[ 56 ] I have therefore concluded that the plaintiff’s accident was caused as a result of the presence of water on the floor in the northeast area of the floor and the presence of a small pylon which had been moved and allowed to remain on the floor in a location where it was in the path of skaters using the facility. In those circumstances I find that the plaintiff’s fall was in fact directly caused by the failure of the defendant to take reasonable care to ensure that users of the facility could roller skate safely.

DEFENCES

[ 57 ] The defendant has raised a number of defences in the action, which shall now be considered.

Acceptance of Risk

[ 58 ] The evidence of the defendant is that there were signs posted in the premises which stated “Skate at your own risk”. Neither the plaintiff nor his wife had any recollection of seeing these signs. However, both acknowledged that falling is an inherent risk of roller skating. I accept this as a basic principle. Like many other activities in life, roller skating does have inherent risk. People who engage in these activities understand and accept those risks. However, I do not believe that this extends to an acceptance of risks caused by the negligence of the defendant in creating a hazardous condition on the skating floor.

[ 59 ] As noted by the Supreme Court of Canada in the Waldick decision, supra, the application of the volenti defence as set out in Section 4(1) of the Occupier’s Liability Act will not shield a defendant from liability unless there is clear evidence that the plaintiff was consenting to accept the legal risk and waive any legal rights that might arise from the negligence of the defendant. There was no evidence during this trial to support such a conclusion. I therefore conclude that the plaintiff did not accept the risk of a hazardous condition being created by the defendant on the skating floor, and Section 4(1) does not afford a defence to the defendant in this action.

Contributory Negligence by Plaintiff

[ 60 ] There were several arguments advanced by the defendant with respect to contributory negligence by the plaintiff. The first major issue raised was with respect to the fact the plaintiff was skating backwards at the time of the fall. Mr. Themann testified in his evidence at trial that skating backwards was a prohibited activity and that he made several announcements during the course of the afternoon. However, the list of safety rules which was posted at the time does not include any reference to a prohibition against skating backwards. In addition, Mr. Themann’s evidence that he made several announcements about this during the afternoon session is directly contradicted by his Discovery evidence which has been referenced above. I conclude in the circumstances that there was no prohibition against backwards skating on the afternoon of March 17uth. Mr. van Staveren was an experienced skater and had skated backwards on several occasions earlier in the afternoon. I do not find that he was negligent for skating backwards at the time of his fall.

[ 61 ] It is also suggested that Mr. van Staveren was negligent for failing to wear protective equipment. The evidence of Mr. Themann is that protective equipment was available if requested by customers of Coachlite. However, use of protective equipment was not mandatory. Mr. van Staveren was an experienced skater and there is no evidence before me which would justify a conclusion that the use of protective equipment is a common or accepted practice in roller skating. There is also no evidence which directly comments on whether the nature of the injury suffered by Mr. van Staveren could have been avoided. Although commonsense suggests that the purpose of protective equipment is to protect the user, the defence did not call any evidence to support a conclusion that the injury could have been lessened or avoided in this particular case. In all of the circumstances I am not prepared to make a finding that Mr. van Staveren was negligent by failing to wear protective equipment.

[ 62 ] The defence also alleges the defendant was negligent for failing to see a hazardous condition prior to his fall. I do not believe it would be reasonable to expect Mr. van Staveren to have spotted a small pool of water probably no greater than the size of a loonie which was on the floor at the time of his fall. However, I would have expected him to see a bright orange pylon. The fact that Mr. van Staveren was travelling backwards does not excuse his failure to see the pylon, as he needed to make a careful check of the area in front of him before he started to skate backwards. Given the bright colour of the pylon there is simply no excuse for Mr. van Staveren to have missed seeing it. I therefore conclude that he was contributorily negligent for his injuries. It remains, however, that the primary cause for the fall was the defendant’s negligence. I therefore assess Mr. van Staveren’s contributory negligence at 25 per cent.

DAMAGES

[ 63 ] Mr. van Staveren suffered a significant facture of his left elbow. Fortunately, the plaintiff is right handed. Nevertheless, as a cook he requires both arms and this is, therefore, a significant injury for him.

[ 64 ] On consent, the parties filed the report of an orthopaedic surgeon, Dr. Ogilvie-Harris, dated August 31, 2011 as an exhibit at trial. Dr. Ogilvie-Harris documents that the plaintiff suffered an undisplaced intra-articular fracture of the radial head. At the time of his assessment the plaintiff had some aching and discomfort in the left elbow. In addition, it is recorded that his elbow or hand feels weak from time to time. There are no neurological symptoms associated with the injury. Dr. Ogilvie-Harris concludes that the fracture has gone on to heal. The plaintiff is left with residual symptoms at the current time which are relatively minor and are highly unlikely to progress in the future. It is not anticipated that there will be the need for any surgical intervention or any deterioration in his condition in the future. In light of the medical and other evidence adduced at trial, I have concluded that a reasonable estimate of the plaintiff’s general damages is $25,000.00

[ 65 ] In addition, the plaintiff is asserting a loss of income claim. The plaintiff was off work for 6 weeks, but received unemployment benefits of $1,775.00. He also received $1,755.00 from employment insurance on account of disability benefits.

[ 66 ] At the time of the fall, Mr. van Staveren was employed on a full-time basis at a long term care facility. He earned $19.20 an hour. He also worked as a cook on a part-time basis for the local Holiday Inn, and worked from 6 to 12 hours a week earning $15 an hour.

[ 67 ] The plaintiff’s uncontradicted evidence is that he was off work for 6 weeks. He had two jobs. One was full-time and one was part-time. The number of hours worked in his part-time job varied from time to time. Even accepting there was a minimal number of hours on his part-time job, the loss of income claim would exceed $5,000.00. However, the plaintiff did receive 7 sick days and employment insurance in the sum of $1,775.00. The plaintiff’s counsel takes the position that an award for lost income should be assessed at $4,017.00. This represents the difference between the plaintiff’s income in 2009, which was $44,477.00, versus 2010 when his total income from all sources had dropped to $40,460.00. I accept this as a reasonable basis to calculate the plaintiff’s lost income. I therefore assess the claim for lost income at $4,017.00.

CONCLUSION

[ 68 ] In the result I have assessed the plaintiff’s general damages at $25,000.00 together with damages for lost income at $4,017.00. I am advised that there are no further claims being advanced in the action other than interest and costs. I have concluded that the plaintiff is responsible by way of contributory negligence for 25% of these damages. Judgment will issue in favour of the plaintiff in accordance with the above calculation. The plaintiff is entitled to pre-judgment interest.

[ 69 ] The only remaining issue is the costs of the action. If counsel are not able to agree on costs they may contact the trial coordinator in order to arrange a date to address the issue of costs in this action. At least one week prior to attendance to address the issue of costs counsel are required to submit written submissions on the issue of costs. If no arrangements are made with the trial coordinators office to make an appointment to address the issue of costs within 30 days from the release of this decision then there shall be no order with respect to costs.

Justice M. McKelvey

Released: December 3, 2012