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Occupier's Liability - Recent Cases

by Mary MacGregor

written 1997, published in Beef in B.C. November/December 97

Many ranchers worry about liability for people who are injured on ranch property. Often, the rancher is not even aware that the people are there.

You may find two recent B.C. cases reassuring.

Storrie v. Pacific Coast Energy and MacMillan Bloedel

This case was decided on June 19, 1997 in Nanaimo

The claimant was 13 years old at the time of his accident, in November 1992. He, his step-father, and a 16 year old friend had been riding their dirt bikes on the Pacific Coast Energy right of way. All three were experienced dirt bike riders.

After a while, the step-father went home. Some time after he left, the bikes of the claimant and his friend collided, injuring the claimant. Neither boy had any recollection of how the accident happened.

The claimant sued the friend, the friend's parents, Pacific Coast Energy, MacMillan Bloedel, and Lance Martin.

It is the claims against the last three defendants which are of interest to land-owners.

Pacific Coast Energy Corp. owned the dirt road right of way running alongside the MacMillan Bloedel Limited pipeline. Pacific Coast's gas pipeline runs under the road. MacMillan Bloedel had some kind of pipeline beside the Pacific Coast Energy road. Lance Martin owned 23 acres of property beside the MacMillan Bloedel pipeline.

These three defendants applied to Court to have the claim against them dismissed.

The defendants, and the judge in his reasons, relied on the Occupiers Liability Act. The judge quoted section 3 of that Act says:

1. An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and his property, on the premises, and property on the premises of a person, whether or not that person himself enters on the premises, will be reasonably safe in using the premises.
2. The duty of care referred to in subsection (1) applies in relation to the (a) condition of the premises; (b) activities on the premises; or (c) conduct of third parties on the premises.
3. Notwithstanding subsection (1), an occupier has no duty of care to a person (a) in respect of risks willingly accepted by that person as his own risks, or (b) who enters premises that the occupier uses primarily for agricultural purposes and who would be a trespasser under the Trespass Act, other than a duty not to (c) create a danger with intent to do harm to the person or damage to his property, or (d) act with reckless disregard to the safety of the person or the integrity of his property.

The judge dismissed the claim against all three land-owning defendants. He dealt first with MacMillan Bloedel. He decided that the claimant had not proved that the accident took place on MacMillan Bloedel land. He also said that the claimant had not established that MacMillan Bloedel breached its duty of care towards the claimant.

Then he dealt with the claim against Lance Martin. Mr. Martin knew that motorcyclists rode their vehicles on the right-of-way, and had stopped that activity in the past whenever he encountered it. He had put up "no trespassing" signs. The judge said that not only had he not encouraged the activity, he had actively discouraged it. Mr. Martin also had not breached his duty of care towards the claimant.

Finally the judge dealt with the claim against Pacific Coast Energy Corporation. The judge applied the same reasoning as for Mr. Martin. The judge found that the road was in good condition, not rutted, had a relatively smooth surface and had no large boulders. In both cases, the claimant failed to prove that the nature of the road or land was unsafe and had contributed to, or caused, the accident.

What factors, if different, might have changed the outcome in this case?

First, the judge surmised from the nature of the damage to the bikes, that the boys had hit each other in the front end; in other words that they were side by side when they collided. Although the claimant pointed to a blind corner on the road as being a breach of the duty of care under the Occupiers Liability Act, the judge said that that would not necessarily create an accident if one was travelling at a safe speed. The judge did not believe that the blind corner was responsible for this accident.

It is possible that the claim against the landowners might have gone to trial instead of being dismissed out of hand, if there had been evidence about how the accident actually happened, and that some unsafe feature of the road or the land contributed to it. But in this case either there was no such evidence, or it was not submitted to the Court.

Smith v. Atson Farms Ltd. and others

This case was decided in Chilliwack on March 19, 1997.

This was a tragic accident. The claimant, a 53 year old security guard, climbed over a barbed wire fence into the defendants' pasture on the evening of June 13, 1993. The defendants' Holstein bull charged him and knocked him down. The claimant broke his hip, and lay helpless in the pasture for five days before he was rescued. He had to undergo hip replacement surgery.

The defendants in this case also resorted to the Occupiers Liability Act, section 3(3), quoted above.

The claimant acknowledged that the lands were used primarily for agricultural purposes, and that he was a trespasser when he was injured.

But the claimant said that the defendants were negligent because they did not keep the bull under control; they did not warn of the "fierce and mischievous nature" of the bull; nor did they notice the bull's “threatening and fierce nature” before the attack.

The judge decided that, because of the provisions of the Act, the defendants had to be excused unless it was proved that they either created a danger with intent to do harm, or acted with reckless disregard for the safety of the claimant and others.

The judge said that there was no evidence that the defendants had created a danger with intent to do harm.

For the claimant to prove that the defendants acted with reckless disregard for his, and others', safety, the claimant had to prove that the defendants knew, or had reason to believe, that the claimant was present on their lands.

The claimant would also have had to prove that the defendants did, or omitted to do something which the defendant should recognize as likely to cause damage or injury, not caring whether damage or injury results.

In this case there was nothing to suggest a reckless disregard for anyone's safety. The judge noted that "the bull had been enclosed with cattle without incident, and it cannot be said that its behaviour should have forewarned the defendants that, if someone trespassed, injury would result.".

Lessons From These Cases

1. Comply With Trespass Act. To obtain the protection of the Occupiers Liability Act, the claimant must be a trespasser under the Trespass Act. This means that the claimant is inside “enclosed land” without the consent of the owner, lessee, or occupier. “Enclosed land” under the Trespass Act includes land that is surrounded by a “lawful fence”, land that is surrounded by a lawful fence and a natural boundary or by a natural boundary alone, or posted with signs prohibiting trespass. These signs must be posted at each ordinary access to the enclosed land, so that in daylight and under normal weather conditions, the sign is clearly visible and the writing on it is clearly legible from the approach to the access where the sign is located. My recommendation is to post “no trespassing” signs. Do not rely on a fence surrounding the lands; it is likely that the fence is not a “lawful fence” under the regulations to the Trespass Act.
2. Exercise Control. Object to activity that you do not want on your land. Wherever you see someone trespassing or doing some activity that you do not want them to do on your land, ask them to stop or to leave.
3. Take Care. If there is something on your property that is likely to cause damage or injury, try to fix it, or take steps to prevent trespass or warn people of the danger if it cannot be fixed. The more dangerous the situation is, the more steps you should take to prevent people from going on your land.