ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-09-0590
DATE: 2014-03-26

B E T W E E N:

Yaye (Jackie) Saisho, and Yaye (Jackie) Saisho, Estate Trustee of the Estate of Tetsuo (James) Saisho,

Robert E. Somerleigh, for the Plaintiffs

Plaintiffs

• and -

Loblaw Companies Limited, Westfair Properties Ltd. and James Douglas Beardy,

Chantal Brochu, for the Defendants Loblaw Companies Limited and Westfair Properties Ltd.

Defendants

HEARD: December 2, 3, 4 & 5, 2013,
at Thunder Bay, Ontario

Mr. Justice F. B. Fitzpatrick

Reasons For Judgment

[1] This is an action where the plaintiff claims damages arising from an accident. The accident occurred at a bulk item grocery store in Thunder Bay on the afternoon of December 19, 2007. One of the store’s patrons, the defendant, James Douglas Beardy, pushed his grocery cart into another patron, Tetsuo (James) Saisho (“Mr. Saisho”) as both men were headed for the exit of the store. Unfortunately, Mr. Saisho suffered very serious injuries from the collision.

[2] The main issue to be decided in this case is the liability of the store. Because of how the accident occured, the question becomes whether a grocery store is liable for the negligent actions of one its patrons where those actions cause damages to another patron of the store.

Preliminary matters

[3] In this case, Mr. Beardy did not file a defence and was noted in default. He did, however, testify on behalf of the plaintiff. Based on the evidence which I will detail below and the noting in default, I find that the plaintiff has proven that Mr. Beardy was negligent on the day at issue, and his actions caused damages to Mr. Saisho. Mr. Beardy failed to act with due care and attention. His negligent action and breach of his duty of care caused serious injury to Mr. Saisho. Mr. Saisho died in 2010 and is represented in this action by his estate trustee, his wife Yaye (Jackie) Saisho. Ms. Shaisho also claims damages under the Family Law Act , R.S.O. 1990, c. F.3, s. 61 [FLA], for loss of care and companionship as a result of the accident.

[4] At the commencement of the hearing, the parties filed an agreed statement of facts. It is attached to this judgment as Schedule “A”. In addition to the agreed facts, based on the evidence heard at the trial, in my view, there are a number of facts that were not seriously in dispute, and I am prepared to make those findings first in this judgment before moving to a discussion of the disputed matters at issue.

Non Disputed Facts

[5] On December 19, 2007, Mr. Beardy and his friend Albert Sakakeep had travelled to Thunder Bay to do some major shopping. These gentlemen live on the Round Lake First Nation, which is only accessible by air, except during freeze-up when there is winter road access. They had travelled approximately 400 miles to buy various items. The Westfair Bulk store was their final destination before they were going to drive back to Round Lake.

[6] Both gentlemen had shopping lists and went about the store picking out merchandise. Mr. Beardy was using a conventional shopping cart while Mr. Sakakeep was using a larger flatbed trolley-type cart. Both men went to check out at the same time. Mr. Beardy was first in line. In the store, they were using Lane 1, the check out furthest from the exit to the store.

[7] At approximately the same time, Mr. Saisho was purchasing bulk products for the Asian grocery store that he ran for almost 40 years. He had the assistance of a helper while in the store. At the time Mr. Saisho was 90-years-old. Although he was frail, he could walk on his own with the assistance of a cane.

[8] After Mr. Beardy put all his items through to be scanned by the cashier, he went to the end of the conveyor to begin loading his cart. Mr. Beardy also loaded all of Mr. Sakakeep’s merchandise on his cart. There is a dispute as to whether or not the cashier took Mr. Sakakeep’s payment before Mr. Beardy had finished completely loading the cart. What is not in dispute is that Mr. Beardy loaded items in his cart such that he could not see over the piles of boxes of merchandise in the cart once it was fully loaded.

[9] Mr. Beardy testified the loaded cart was very heavy and hard to push. Mr. Beardy then proceeded to push the cart towards the store exit, despite the fact he could not observe where he was going. Mr. Sakakeep was not with him as he had forgotten something and had gone back into the merchandise area of the store to purchase another item.

[10] Mr. Saisho had completed his purchase and had passed through the lane where he had been checked out. He was in the front of the store and was walking, slowly, with the use of his cane, toward the exit. Mr. Beardy began to move his overloaded cart. In doing so, he acted in a clearly unsafe manner. Unfortunately, Mr. Beardy’s cart struck Mr. Saisho as both men were headed to the exit of the store. The force of the cart was sufficient to knock Mr. Saisho face first to the floor, where he suffered a serious traumatic injury. Mr. Saisho then spent the rest of that day, until the day he died on January 18, 2010, in hospital. He spent the rest of his life as a spastic quadriplegic. The parties have agreed on the pecuniary damages and prejudgment interest arising from this accident in the amount of $65,373.88. They have also agreed to damages in favour of the Ministry of Health and Long-Term Care for its OHIP subrogated account in the amount of $262,601.10, inclusive of prejudgment interest.

[11] The store does not dispute it owed a duty of care to Mr. Saisho. This duty is statutory. Section 3 of the Occupiers’ Liability Act, R.S.O. 1990 c. O.2 [OLA], imposes a duty on the occupier of premises to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises are reasonably safe while on the premises. The dispute is whether the store breached that duty.

[12] The store does not dispute that Mr. Saisho suffered damages from the negligent acts of Mr. Beardy. The store does not dispute that Mrs. Saisho suffered a loss of care and companionship as the result of the accident. The store disputes its liability for these damages and the quantum of the damages.

Disputed Facts and Issues

[13] Like all personal injury actions, resolution of the case requires first, a finding of liability and second, an assessment of damages. With regard to liability, the following is a broad description of the facts and issues in dispute:

1. Did the store breach its duty of care either by the actions of its employees, or the lack of action by its employees?

-Did the Cashier in Lane 1 see that Mr. Beardy had overloaded his cart?

• Did the cashier in Lane 1 have a duty to tell Mr. Beardy to take down his load or stop him from moving until he did take down his load?

2. Was it reasonably foreseeable that a patron would overload a cart and then push it so as to collide with another patron such that the store had a duty to post notices referring to the dangers of overloaded carts or to have specific policies regarding measures to prevent patrons from moving around the store with overloaded carts?

3. Did the store breach a duty of care to Mr. Saisho in the manner it carried out the investigation of the accident?

4. Was the actual collision caused by Mr. Beardy’s inattention to where he was going or his inability to see where he was going and proceeding in any event?

[14] With regard to damages, the issues are:

1. What is the monetary value of the general damages suffered by Mr. Saisho?

2. What is the monetary value of the Family Law Act damages suffered by Mrs. Saisho?

[15] In this matter, the credibility of all the witnesses was not seriously challenged by either side. A number of witnesses were called, but only the evidence of Mr. Beardy was disputed on a few key points in relation to the testimony of others who were called both by the plaintiff and the defence. However, I find that the discrepancies were not as the result of any of the witnesses being untruthful, but rather they have been caused by the passage of time and the rather short timeframe in which the critical event in this case, the collision, occurred. In all, the essence of the dispute lies in the conclusions to be drawn from all the testimony rather than a preference for certain testimony over others.

[16] As a result, I will discuss the evidence I heard on the disputed issues by describing in general terms what the evidence was on the various points, describing the position of the parties regarding the issue, and then giving my analysis (including any discussion of the law) and findings with regard to both liability and damages.

Liability

[17] In my view, there are three distinct aspects to a determination of the liability of the store in this matter:

First, was there a breach of the duty of care by the store in regard to either the actions or inactions of its employees between the time Mr. Beardy moved through Lane 1 and then moved his cart into a position where it struck Mr. Saisho?

Second, did the store have a duty to have policies and procedures in place specifically dealing with the situation of overloaded grocery carts?

Third, did the store have a duty to investigate the accident and was its investigation sufficient in light of that duty?

[18] In my view, the relevant evidence on the issue of the action or inaction of the store’s employees can be divided into two distinct periods of time. The first period concerns the time that Mr. Beardy was in the process of paying for his order, then loading his cart and then when he first began moving his cart away from the checkout line towards the exit. The second period of time relates to the period where he moved the overloaded cart from the area where he checked out to the general vicinity where the cart collided with Mr. Saisho.

[19] Evidence on this first segment was given by three witnesses, Mr. Beardy, Bonnie Tait and Albert Sakakeep. Evidence relating to the second segment was given by the majority of the witnesses called in the trial. I heard evidence from Mr. Beardy, Ms. Tait, Mr. Sakakeep, Murray Dance, Debbie Van Dine, Josh Selagi and Adele Bevan. Interestingly, none of the witnesses called actually saw the collision. However, Mr. Beardy felt the collision. The evidence concerning the second segment was helpful only for the issue of where the actual collision took place relative to the exit of the store.

[20] Bonnie Tait was working as a cashier at the store on the day in question. She had worked for the store from August 2006 until February 2013. She was summoned to give evidence at the trial by the plaintiff.

[21] Ms. Tait described the layout of the checkouts for the store on December 19, 2007 with the use of a floor plan that was introduced into evidence. The floor plan exhibit was then used by all the other witnesses as a reference for their testimony. There were six checkout lanes in the store. They were grouped in 3 pairs: Lanes 1 and 2, 3 and 4, and 5 and 6. Lane 1 is furthest from the exit to the store. Ms. Tait was working in Lane 3. She checked out Mr. Saisho through Lane 3. Mr. Saisho was a regular in the store and was known to Ms. Tait.

[22] Once Mr. Saisho had been checked out, he began to walk slowly toward the exit of the store. His purchases were moved by his helper in a grocery cart. The helper was ahead of Mr. Saisho and left the store first.

[23] After the time she had checked out Mr. Saisho, Ms. Tait glanced over toward Lane 1. Laurie Hovey was working Lane 1 at that time according to Ms. Tait. Ms. Tait confirmed Ms. Hovey was terminated as an employee of the store in 2012 or 2013. Ms. Hovey did not testify at this trial. I will address that issue later. There was no dispute that Mr. Beardy checked out through Lane 1.

[24] Ms. Tait testified that she saw a cart at the end of Lane 1 that was “way overloaded”. She observed the overloaded cart at the point that it was moving away from Lane 1 towards the exit. She described seeing this situation during her examination in chief as occurring “at a glance”. Ms. Hovey appeared to Ms. Tait to “be still communicating with the customer” so Ms. Tait went back to doing her job which was checking through her next customer. Ms. Tait admitted in cross-examination she made this observation in a “fraction of a second”. Also, she admitted the store was noisy, and she could not hear what Ms. Hovey was saying to the customer if anything. Ms. Tait did not take any steps to stop or speak to the customer pushing the overloaded cart.

[25] Ms. Tait testified that often she would see customers moving about the store with overloaded carts. She said this would happen often once or twice a week. When confronted with this circumstance, if she could see it, she knew she should stop the customer and ask them to reduce their load to the point where it could be moved about safely. She testified this was a matter of common sense and was not expressly dealt with in any policy or procedure manual of the store. If the customer did not comply with her request, she knew she should contact her supervisor immediately and let them try to handle the situation. She testified that management did attempt to address situations of overloaded carts when advised by employees of these situations.

[26] Ms. Tait did not see the collision between Mr. Beardy’s cart and Mr. Saisho. She heard a commotion and saw boxes from the overloaded cart had been knocked over. It happened very quickly. A crowd gathered. Ms. Tait did not go over to the vicinity of the collision as she believed others would look after it. She did not find out specifically what happened to Mr. Saisho until the next day. She was not asked to give a statement to anyone about the accident at the time it occurred.

[27] Ms. Tait testified that cashiers take no part in the boxing or bagging of the customers’ groceries or loading their carts once they put their items through on the checkout belt and have paid for the items. That process occurs often at a time when the cashier is helping the next customer. As a result, Ms. Tait agreed while being cross-examined that it was reasonable to say that a cashier wouldn’t have the opportunity to observe how a customer has loaded the cart once they have made their payment and the cashier has moved on to the next customer.

[28] Mr. Beardy testified as to the facts noted previously in this decision as not in dispute. He confirmed he checked out through Lane 1 and filled one cart with both his purchases and those made by his friend Mr. Sakakeep. Relatively speaking, Mr. Sakakeep had more groceries than did Mr. Beardy. He did admit once he loaded both his and Mr. Sakakeep’s groceries, he could not see over the top of the load on the cart. Mr. Sakakeep did not assist Mr. Beardy in loading the cart. He was busy loading his items onto the conveyor to be scanned and put through.

[29] Once Mr. Beardy was finished loading all the groceries, Mr. Sakakeep said he had to go back to get something else, and he went back towards the grocery aisles. Mr. Beardy admitted he could not see straight ahead over the load. He explained that he was rushing to get back on the road to get home. He did not want to make more than one trip out to the truck.

[30] Mr. Beardy was specifically asked about his interactions with the cashier. He testified that he could not speculate as to what she could see with respect to his cart. He testified she did not make a complete 180 degree rotation toward him and he said “she probably could have seen my cart”. He did testify he packed the cart first with his goods and then with Mr. Sakakeep’s groceries. He testified the cashier turned to accept the payment for his goods at a time when he was still in the process of packing the cart with his groceries. Albert’s groceries were still to come. In cross-examination, he admitted the cashier did not help him load his cart.

[31] Once the cart was loaded, Mr. Beardy testified that no store employee, or anyone for that matter, said anything to him about the height of the load on the cart.

[32] Mr. Beardy testified he took a look around the side of his cart before he started to move it. He testified that he thought the collision took place very shortly after he started moving the cart. In the instant before impact, Mr. Beardy testified that Mr. Sakakeep was talking to him from a distance, from the other side of the cashier’s posts. Mr. Beardy was looking to his right, not straight ahead, when the impact occurred.

[33] Mr. Beardy was quite shaken up after the collision. He testified he does not remember very much after it occurred. He did not recall anyone taking any photographs of the scene. The police were called. Mr. Beardy gave a statement to the police. None of the evidence gathered by the police was tendered at the trial.

[34] Albert Sakakeep confirmed much of the testimony of Mr. Beardy concerning their interactions. Mr. Sakakeep confirmed he did not assist in the packing of the cart. He did note that he could see the load was very high, and Mr. Beardy could not see over top of the load. Mr. Sakakeep did not say anything to Mr. Beardy about the size of the load. In cross-examination Mr. Sakakeep testified he could not really remember if Mr. Beardy had completed packing the cart at the time that Mr. Sakakeep was done paying for his groceries. On re-examination, Mr. Sakakeep said Mr. Beardy was almost completely done packing the cart when Mr. Sakakeep was paying for his goods. Mr. Sakakeep could not recall if there was another customer behind him in the line.

[35] Mr. Sakakeep then walked toward Mr. Beardy at the end of the cashier lane and was standing beside Mr. Beardy and the cart once it started to move. Mr. Sakakeep then realized he forgot something and went back into the body of the store. He confirmed that he was talking to Mr. Beardy about the time the collision occurred although Mr. Sakakeep did not observe the actual collision. Mr. Beardy had moved away from Lane 1 and was proceeding towards the exit of the store.

[36] Mr. Sakakeep did not offer any evidence about his observations of any interactions between Mr. Beardy and the cashier in Lane 1.

[37] Mr. Sakakeep was not questioned by anyone about the accident on the date it occurred.

[38] With respect to the period of time when Mr. Beardy was moving the cart until the time the cart collided with Mr. Saisho, testimony was given by a number of witnesses. As none of them actually witnessed the collision, the value of this evidence was establishing where the collision took place. Also, with respect to the store employees who were called as witnesses, their evidence was relevant as to the policies and procedures of the store regarding safety of customers and specifically, how they believed they should deal with situations of overloaded carts. They were also questioned about the investigation of the accident.

[39] All of the witnesses (save the expert witness Mr. Dance) saw Mr. Saisho lying on the floor following the collision. Each of them identified an approximate location where they remembered observing Mr. Saisho on the floor. In my view, this is important as there was a period of time when the cart was in motion, where there was an opportunity for the accident to have been avoided. I have to determine if the store in fulfilling its admitted duty of care to Mr. Saisho, breached the duty during that intervening time period.

[40] Murray Dance, a mechanical technologist was called to give expert testimony in regard to calculating the extent of the blind spot caused by the boxes placed by Mr. Beardy on a shopping cart to a height which blocked his forward vision at the store on the day at issue. Mr. Dance has a great deal of experience in the field of motor vehicle accident reconstructions and issues related to safety of motor vehicles, safety features of motor vehicles, child care seat restraints and blind spot calculations for cars and for accident situations. Over the objections of the defendants, Mr. Dance was qualified to give the court an expert opinion as noted above.

[41] As part of his evidence, Mr. Dance provided a diagram which showed that a person like Mr. Beardy, pushing a shopping cart of similar dimensions to those used by Mr. Beardy, and piled with objects to eye level, would experience a forward acute isosceles triangular shaped blind spot while pushing the cart. The base of the triangle blind spot being at the front of the cart and the pinnacle of the triangle being some eighteen feet away from the centre line of the cart.

[42] While the court accepted Mr. Dance as an expert and he gave his evidence in a very straightforward and understandable manner, I did not find the evidence to be particularly helpful to a resolution of the essential issues in the case. I also accept some of the arguments of the defence that the results of Mr. Dance’s physical testing relied very much on the physical characteristics of the surrogate person performing the tests. It was clear from the cross-examination of Mr. Dance, that issues such as the length of a person’s torso, and their degree of flexibility to peer to either side of the cart would impact the size of the blindspot. Also Mr. Dance did his testing with a perfect rectangle object being used to block the view of the surrogate. Mr. Beardy’s evidence was that he piled smaller boxes of groceries above the basket on top of a larger fruit type box. It cannot be taken from that evidence that the obstruction was as broad as the one relied upon by Mr. Dance. If in fact the obstruction of the pile was irregularly shaped, this would give Mr. Beardy a different line of sight than was opined by Mr. Dance.

[43] In any event, it was clear from the evidence of Mr. Beardy that he couldn’t see forward when he loaded and then began to move his cart. It was clear from the evidence of Ms. Tait and Mr. Sakakeep that the cart appeared to be overloaded with boxes. In my view, the fact that Mr. Beardy had a large or small blindspot while pushing the cart is irrelevant to the question of liability for either himself or the corporate defendant given the testimony of Mr. Beardy. He did have a blindspot. He couldn’t see what was in front of him. He was pushing what he described as a very heavy cart which he couldn’t see around in a store, at midday, which was busy. In my view, he was negligent to move the cart forward when he couldn’t see where he was going. As far as the liability of the store or its employees’ ability to judge whether or not a hazardous situation was in existence, a precise scientific calculation of the area of the blind spot presenting itself to Mr. Beardy did nothing to assist me in determining if the duty of care was breached or not in this circumstance. What Mr. Beardy did was clearly negligent, in my view. The issue is whether or not employees of the store had both the opportunity to recognize the hazard, and the time and opportunity to stop Mr. Beardy before he bumped into anybody or anything else.

[44] Mr. Beardy, Mr. Sakakeep, Ms. Tait, Debbie Van Dine, Josh Selagi and Adele Bevan all testified as to where they believed the collision occurred. The store employees were also questioned about the policies and procedures of the store regarding customer safety, the issue of overloaded carts and the investigation done following the accident. The plaintiff also read in to evidence portions of the examination for discovery of Jason Brown, who was a store manager and had been produced by the store defendants. I will start with a discussion of the witnesses called by the defence in regard to the liability issues.

[45] Debbie Van Dine was the front-end supervisor for the store on the day in question. She had been employed by the store from April 2004 until September 2013. She was outside of the store on a smoke break when the accident occurred. She came into the store when another employee advised her that Mr. Saisho had been injured. Ms. Van Dine placed the collision as occurring in the area between Lanes 4 and and 5.

[46] Ms. Van Dine saw Mr. Saisho on the floor. She saw Mr. Beardy’s cart against the wall of the store. She heard somebody say that it was the cart that hit Mr. Saisho. Ms. Van Dine recalls glancing at the cart and it appeared overloaded to her.

[47] Ms. Van Dine gave testimony about the safety policies of the store. She identified a document entitled “safety, environment and waste management policy” that she was given when she was hired. She indicated all new hires of the store were given this policy and it was posted in the staff room. Among other things, the policy states:

Westfair Foods Ltd. offers a clean, safe and well groomed shopping environment for its customers. At the same time, Westfair Foods Ltd. and its employees have a legal obligation to be on guard for the safety of our patrons and employees…

I understand that as an employee of Westfair I have a responsibility to abide by the company policy with respect to Safety, Enviroment and Waste Management, therefore, I must comply with the following guidelines:

1. Report any unsafe acts or conditions and correct unsafe conditions when working while encouraging co-workers to do the same.

2. If I see or hear anything that may cause a potential hazard for our patrons, I will immediately try to alleviate the problem by:

A) Advising my supervisor or manager of the problem as soon as it is reasonably possible.

B) Warning Patrons of the hazard by immediately securing the area to indicate a hazard.

C) Removing or cleaning up the hazard.

[48] According to Ms. Van Dine, she believed that this policy required employees to take action if they saw a hazard and if they couldn’t act, they should get someone else to act on it. She testified that on a weekly basis, she would instruct cashiers for whom she was responsible to be aware of hazards. She was aware of the possibility that customers could overload their carts. She testified she would instruct the customer to take the load down if she saw such a situation. In cross-examination, she agreed that store employees talked constantly about situations involving overloaded carts. She also testified that in “99 times out of 100”, customers would agree to remedy an overloaded cart if confronted by a store employee.

[49] Ms. Van Dine did not give any statements about the accident to store management.

[50] Josh Selagi was the assistant manager on duty that day. He worked for store from June 2003 to September 2008. He witnessed Mr. Saisho lying on the floor after being paged by Ms. Bevan. He placed the collision as occurring in an area beyond the checkout lanes very close to the exit to the store near the front end desk.

[51] Mr. Selagi was familiar with the Safety, Enviroment and Waste Management Policy of the store. He testified that in his view, there was no specific reference to problems involving overloaded carts, as it was “a common sense issue”. If employees saw a person with an overloaded cart, common sense would dictate they try to have the customer repack the cart or divide the load so they could proceed safely.

[52] As Mr. Selagi was the only management staff member working that day, he prepared an accident report which was admitted in to evidence. It was the first and only accident report he did while employed by the store. He did not take photographs of the accident scene. He believed he was only required to take photos if some obstacle or spill had caused Mr. Beardy to fall. In cross-examination, he was referred to certain policy guidelines the store had in place at the time with regard to the investigation of accidents. Among other things, the store-policy guidelines directed management employees to take 5 to 6 photographs of the area. Mr. Selagi could not recall if he was aware of those directions at the time of the accident. In any event, Mr. Selagi didn’t think there was anything relevant to photograph.

[53] He spoke to Mr. Beardy. He did not record what he said as he believed the police would be doing an investigation. He also spoke to Ms. Bevan about the accident.

[54] Adele Bevan was working as the “host” for the store that day. In that role, Ms. Bevan’s duty was to stand by the exit and check customers’ carts against their receipts. This acted as a loss-control mechanism for the store. She witnessed Mr. Saisho walking towards her standing at the exit, but she was engaged checking the cart of another customer when she heard the collision. She placed the collision as occurring relatively close to her, in the same area as identified by Mr. Selagi. She did testify during cross-examination that once she realized what occurred she saw Mr. Beardy and his cart. She observed that the cart was clearly overloaded.

[55] In her capacity as host, Ms. Bevan regularly encountered customers who had overloaded carts. She estimated she would see about 10 of these situations in a year. She testified she would tell them to reduce their loads if she observed an overloaded situation. She testified that on occasion, customers could be rude and unresponsive about such requests.

[56] For the plaintiff, Ms. Tait testified that the collision occurred in an area in front of Lanes 5 and 6. Ms. Tait’s evidence concerning safety policies and procedures has been outlined previously in the discussion of her testimony.

[57] Both Mr. Beardy and Mr. Sakakeep said the collision occurred in an area in front of Lane 3. Mr. Beardy confirmed he did not see any signs in the store concerning the overloading of grocery carts.

[58] Relatively speaking, the location given for the collision varied widely, from Mr. Beardy and Mr. Sakakeep, on the one hand, to Mr. Selegie and Ms. Bevan, on the other.

[59] The evidence of Jason Brown on behalf of the store defendants confirmed that employees were told to be alert to the possibility that customers could overload their carts and to tell customers to remedy the situation if it was observed. However there was no express policy directing cashiers to ensure that carts were loaded safely once customers had paid for their purchases. Also, there was no signage in the store directing customers not to overload their carts.

Position of the Parties on Liability

The Plaintiff

[60] The plaintiff points out that the commercial model of the store defendants is one whereby the customer is solely responsible for bagging, boxing and loading their own purchases. The store, despite providing all the items necessary for sale of their products (for example carts, cashiers and loading conveyors) nevertheless leaves complete discretion and control over the cart-loading process to the judgment of the customer. The plaintiff argues this creates a situation where harm due to improper loading could foreseeably result. The plaintiff argues the lack of signage specifically dealing with overloaded carts and the lack of an express policy directing staff on how to deal with overloaded carts represents a breach of the duty of care to maintain safe premises.

[61] The plaintiff argues that the evidence at trial establishes that the cashier on Lane 1 had to have seen the overloaded cart. In seeing the cart, the cashier had the duty to tell Mr. Beardy to take the load down or load the goods into two separate carts. In failing to do so, particularly when overloaded carts were a regular occurrence in the store, the store is vicariously liable for the failure of the cashier to stop Mr. Beardy from proceeding in an obviously dangerous manner.

[62] The plaintiff argued that the investigation of the accident was deficient in that no photographs were taken. The statements that were taken lacked detail. Accordingly, the court was left with an evidentiary void. The plaintiff argues this permits the court to draw an adverse inference against the defendants as the poor investigation amounts to a “cover up” of the facts of the accident.

The Defendants

[63] The defendants agree the store owed a duty of care to Mr. Saisho. However, that duty is not one of an insurer. The defendants argue that the evidence does not establish that the cashier in Lane 1 observed the overloaded cart. The evidence establishes that the cashier had her back turned to the customer loading the cart for the most part and in any event, Mr. Beardy had not completed loading the cart even when Mr. Sakakeep had finished paying for his goods. The evidence does not establish that the cashier said anything to Mr. Beardy, and in fact she did not have such opportunity as she was dealing with her next customer.

[64] The defendants argue that it had appropriate policies in place to deal with customer safety. Employees were well aware of their duties to customers. With regard to overloaded carts, it was a matter of common sense to advise customers to remedy the situation. The evidence indicated employees did that when such a situation was observed

[65] The defendants argue there is no legal obligation to the plaintiff to investigate the accident. An investigation is for the store’s own benefit and it