The Divisional Court in Seipt v. Irvine, claim No: (4)25121539, heard an appeal regarding a personal injury case going back to the summer of 2007. The defendants held a backyard birthday party and invited the 57 year old plaintiff. The defendants had two dogs, one being Tazzie, a pitbull. The plaintiff was aware that the defendants had these dogs. It was accepted during the trial that the plaintiff had a fear of dogs. She nonetheless attended the party.
At the party, the dogs were playing fetch. Once the dogs were finished playing, they started to walk towards the patio but were still some distance away. The plaintiff became nervous and quickly moved away from the dogs to return back to the house. In her attempt to step up onto the patio, she fell back and fractured her wrist.
The trial judge found that both dogs were friendly and well-trained. However, it was found that the defendants breached their statutory duty under the Dog Owners Liability Act by failing to muzzle and leash Tazzie, while not in a private, fenced area. Apparently, the backyard was missing the back fence. The trial judge did not discuss how this breach may have caused the plaintiff’s injury, since the dogs were always some distance from the Plaintiff. The court stopped short of requiring the defendants to build and pay for a wall.
The trial judge found that the party was held during the day, the plaintiff was wearing flats, she had not consumed alcohol, there were no visibility issues, and the deck was plainly and obviously there to be seen. That said, the trial judge still found that the 13.5 inch step rise created a risk. The trial judge again did not analyze how the step height may have caused the plaintiff’s fall. The court in the end found the defendants 65% liable for the plaintiff’s injury.
The defendants appealed, alleging that the trial judge set the standard of care too high, effectively rendering the defendants insurers of their premises. The defendants also argued that the trial judge failed to explain how the alleged breach (the 13.5 inch step rise) caused the fall when the deck was plainly and obviously visible.
The Divisional Court agreed with the defendants and allowed the appeal, confirming that the standard under the Occupiers’ Liability Act is one of reasonableness and not perfection. Occupiers are not insurers liable for any damage suffered by persons entering the premises.
The Court held that the trial judge erred in finding that the defendants were liable by simply installing a deck that was 13.5 inches from the ground, by failing to find an objectively unreasonable risk of harm, and by failing to make a finding that the defendants’ actions caused the plaintiff’s fall. The Divisional Court set aside the trial order, finding no liability against the defendants.
About the author
Melissa Miles, Dutton Brock LLP