1995 S.P. No 03479 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: Kathy Marie MacLean -and­ Empire Theatres Limited, body corporate, carrying on business under the name "Empire Drive-In Theatre" DECISION Heard Before: The Honourable Justice Douglas L. MacLellan Place Heard: Pictou, Nova Scotia Date Heard: April and 7, 1998 Date of Written Release: April 28, 1998 Counsel: Jamie MacGillivray, Esq., for the plaintiff David Miller, Q.C., and Nancy Murray, for the defendants MacLellan, J.: The plaintiff, Kathy Marie MacLean, claims against the defendant Empire Theatres Limited for injuries sustained when she fell and injured herself on premises occupied by the defendant. FACT On August 20th, 1995, the plaintiff, who at that time was five and one-half months pregnant, went with her common-law husband to drive-in theatre located outside of Westville, Pictou County, operated by the defendant. They paid a flat fee for their vehicle to enter the premises, and prior to the start of the first movie went to the canteen building located in the middle of the drive-in where they purchased some drinks and food. According to the plaintiff, they then watched the first of the two scheduled movies and at the intermission, after the first movie, she walked from their vehicle to the canteen building. She was carrying the garbage from their food order being couple of drink containers and some other paper containers which were on tray which had been supplied when they purchased the items at the canteen. She was also carrying her wallet. She said she was going to the canteen to dump the garbage and return the tray. She also wanted to use the washroom located inside the canteen and the pay phone to call her babysitter at home. As she approached the canteen building she said she tripped on the edge of the concrete sidewalk which is located in the front of the canteen building. Introduced into evidence were number of photographs showing the canteen building and the concrete sidewalk as it was in 1995. The entrance to the canteen had concrete sidewalk which was approximately four feet wide and goes along the entire front of the building. When person crosses the sidewalk you step up approximately three inches to another concrete platform upon which the doors to the canteen are located. There are four doors there, one of which was open as the plaintiff approached the building. That was the door furthest to the right as you approach the building. Just inside the canteen building was poster case attached to the right side wall. It contained posters of upcoming movies. The case protruded out from the wall number of inches. The plaintiff said that as she approached the area in front of the canteen doors, she tripped on something and stumbled over the sidewalk and onto the platform and then through the open door and landed on the floor inside the canteen. She said this stumble took about four seconds and she didn't really know that she had hit her head on the poster case until afterwards when she realized that she had severe cut in the middle of her forehead. She said she would not get that by just hitting the concrete wall and therefore she must have hit the edge of the poster case. Following her fall, the plaintiff was taken by ambulance to hospital where she received nineteen stitches in her forehead. She was off work until August 27, 1995. LIABILITY In addition to her own evidence the plaintiff called Mr. William White who was qualified to give expert evidence on the inspection of and identification of safety problems in building structures with particular reference to the National Building Code. He visited the site in October, 1995, and took some photographs and measurements. He produced report which was introduced as Exhibit 1, Tab 3, in which he found that "due to the slope of the sidewalk and the uneven condition, feel this may be safety hazard". In his evidence Mr. White said that the slope in the sidewalk for the outside edge to the inside edge where it meets the step was three and one-half inches and that it was inward, not outward. This was problem because it would cause water to collect between the sidewalk and the step and also because person walking into the building would not expect such slope and therefore it might cause person to lose their balance, especially at night. He also noted that there was one and one-half inch lift between the outside edge of the sidewalk and the graveled area beyond it. He said person might trip over that. He had no complaint about the platform leading to the canteen doors. He did not inspect the door threshold, because the building was not open when he was there. He also made no comment about the location of the poster cases inside the canteen. On cross-examination, Mr. White was asked about the National Building Codes and whether he noted any violations of the code at the canteen site. He said he could not specifically find section in reference to whether concrete sidewalk should be level, however, he suggested that Section 8.1.1.5.4 could apply. It provides: "All sidewalks, streets or other public property that have-been damaged shall be restored to safe condition..." He suggested that an uneven sidewalk was not in safe condition.. The plaintiff was cross-examined on the issue of how she fell. She was referred to her evidence given at Discovery in April of 1996 in which she said that she didn't remember what happened when she approached the sidewalk. She had said there that it happened so fast that she basically didn't know what caused her to fall or what her foot had tripped over before she fell. She also acknowledged that at Discovery she said that she told the Theatre Manager, Mary MacKinnon, on the night in question, that she had tripped over the front steps. She indicated that the sidewalk and the platform step were all the same to her. When confronted with number of references to her Discovery evidence which indicated that she couldn't remember where she tripped and in which she didn't say that she tripped on the outside edge of the sidewalk, the plaintiff conceded that she was confused and said that her memory of where she tripped was not good. She said that she did not know if she remembered tripping or not. The defendant called Mark Kennedy. He was employed at the drive-in theatre by the defendant company and was standing just outside the canteen entrance when the plaintiff approached it. He said she was carrying tray from the canteen containing couple of drink containers and other garbage. He said that he was on the platform entrance in front of the door and that he let the plaintiff go ahead of him into the building. He said that as she entered the door she stumbled forward and fell on the floor. He did not see her hit the poster case but saw her head jerk backwards as she fell forward. He offered her assistance and was there when the ambulance took her away. He noted as she approached the building that she was pregnant and afterwards that she was wearing canvass deck shoes. He was questioned as to whether it was possible that the plaintiff tripped over the outside edge of the sidewalk and stumbled, as she described, through the open door. He said that did not happen and that she tripped just as she entered the canteen door. Wade McCain is an insurance adjuster who investigated the plaintiffs claim when first advanced. He took pictures of the scene and did measurements. He was initially called by the plaintiff and later called as witness by the defendant. He indicated that the platform in front of the doors to the canteen is 37 3/4 inches wide and that the door threshold is four inches wide and that the distance from the inside of the threshold to the poster case was 34 inches. Mr. McCain, initially, in his evidence, described in detail the door threshold which ran under the door and gave measurements about it. When he was called by the defendant later, he indicated that the measurements originally given were incorrect. He said that he had checked the location again during the lunch break. He provided diagram showing the door threshold being one-half inch in height and four inches in width. He said it appeared to be standard door threshold for the type of door used on the canteen. Mr. McCain also said that he interviewed the plaintiff in September, 1995, in her lawyer's office and that he understood from her that she was saying that she tripped over the platform and not the outside edge of the sidewalk. He made note of what she said then, which was that "she felt she, had tripped over the platform where it meets the sidewalk". He marked that location on one of the photographs. FINDINGS OF FACT find based on the evidence before me that the plaintiff tripped on the door threshold at the entrance to the canteen building. do so because find that Mark Kennedy's evidence is both credible and reliable. His evidence was in no way challenged by the cross-examination of the plaintiffs counsel. His evidence is consistent with the other evidence, particularly, the fact that the distance from the outside of the sidewalk to the poster case which would be over ten feet makes me believe that it was not likely that the plaintiff would stumble that far before falling. I also find that the plaintiffs evidence of where she tripped is unreliable. She first told the theatre manager that she tripped on the step up to the platform. She re-stated that to Mr. McCain the insurance adjuster. She said in Discovery that she didn't remember what happened. Her evidence at trial, that she tripped on the outside edge of the sidewalk is an attempt, believe, to establish negligence in light of Mr. White's evidence that the sidewalk was unsafe. believe that when confronted with her conflicting evidence from the Discovery, the plaintiff backed away from her direct evidence and admitted that she didn't know where she tripped. don't believe she does know where she tripped because it happened too fast. THE LAW The law involved in this case is occupier's liability. It is set out by the Supreme Court of Canada in the case of Campbell v. Royal Bank of Canada (1963), 1963 CanLII 92 (SCC), 43 D.L.R. (2d) 341. That case has been adopted by our Courts for many years. Our Court of Appeal in Vyas v. The Board of Education of Colchester-East Hants District (1989), 94 N.S.R. (2d) 350 summarized the leading cases on occupier's liability and adopted the test for negligence as set out in Fiddes v. Rayner Construction Ltd. (1963), 1963 CanLII 599 (NS CA), 45 D.L.R. (2d) 367. There the Court found that the following factors were to be considered: (1) Was there an unusual danger? (2) If so, was it one which the defendant knew or ought to know? (3) If so, did the defendant use reasonable care to prevent damage to the plaintiff from the usual danger? and (4) Did the plaintiff use reasonable care on his own part for his own safety? The first step of the test is whether there was an unusual danger on the premises of the defendant. If not, the case should go no further. (See Maclntye v. Beaton (1994), 135 N.S.R. (2d) II). There was no evidence presented before me to suggest that the door threshold on the platform to the canteen was in any way an unusual danger as far as construction was concerned. It protruded up only about one-half inch from the floor and was four inches wide with the sides sloped upward. There was suggestion by the plaintiff that maybe the lighting on the sidewalk was not adequate. disagree with that submission. find that the lighting in the area of the entrance to the canteen was adequate, particularly so in regard to the door threshold which was receiving light from the lights inside the canteen building because the door was open and from the outside pocket lights located outside the door. find that there was no garbage or other materials present to cause the plaintiff to fall. The concrete platform was clear and dry. I find that there was no unusual danger existing on the premises of the defendant, as that term is defined by the Supreme Court of Canada in Campbell v. Royal Bank of Canada (supra). conclude that the plaintiff tripped on the door threshold either because she was not exercising normal care with how she walked or because of the fact that she was carrying the tray containing the garbage. There appears to be little explanation for why she fell because even she could not explain it. There is no evidence that other patrons of the canteen had any difficulty walking across that door threshold. The defendant, through counsel, has suggested that the test of negligence here should be in regard to contractual entrant because the plaintiff paid to get into the drive-in. He submitted the case of Brown v. and F. Theatres Limited (1947), 1947 CanLII (SCC), S.C.R. 486 from the Supreme Court of Canada applies here. In that case the Court found that where the plaintiff had paid to enter theatre that higher standard of care applied. In that case Rand, J. said: "The case has been treated as raising the ordinary question of the duty owed by proprietor of premises towards an invitee. think should observe, however, that this is not merely case of such invitation as was present in Indermaur v. Dames [(1867) L.R. C.P. 311.]. Here, Mrs. Brown paid consideration for the privileges of the theatre, including that of making use of the ladies' room. There was contractual relation between her and the theatre management that exercising prudence herself she might enjoy those privileges without risk of danger so far as reasonable care could make the premises safe. Although the difference in the degree of care called for may not, in the circumstances here, be material, think is desirable that the distinction between the two bases of responsibility be kept in mind: Maclenan v. Segar [[1917] K.B. 325; (1917) 86 L.J.K.B. 1113.], following Francis v. Cockrell [91870) L.R. Q.B. 184.]. In Cox v. Coulson [[1916] K.B. 177, at 181.], Swinfen Eady L.J. said: The defendant must also be taken to have contracted to take due care that the premises should be reasonably safe for persons using them in the customary manner and with reasonable care: citing Francis v. Cockrell [91870) L.R. Q.B. 184.]." In this case, the evidence before me is that the defendant took all the necessary steps to ensure that the canteen entrance was reasonably safe. Staff were instructed to inspect the premises daily before each movie and after the first movie started to ensure that the floors were clear of garbage from the canteen especially liquids. There was sign on the door advising about slippery floors if drinks were spilled. The lights in the canteen and at the entrance were turned up just before the intermission time. find no negligence on the part of the defendant using the standard set out in Brown v. B. And F. Theatres Ltd, (supra). Based on my finding I would dismiss the plaintiff's claim and award costs to the defendant. Despite my finding against the plaintiff on liability, would, however, deal with the plaintiff's claim for damages in case my finding on liability is overturned. DAMAGES The plaintiff sustained significant laceration to her head. The cut was five and one-half centimeters long and located in the middle of her forehead extending beyond her hairline. She showed it to me in Court and the scar was hardly noticeable. She normally wears her hair with bangs which completely cover any scar. She agreed that she got good result from the stitches which were used to close the wound. The plaintiff was off work for some time. At the time of the accident she was working at the Dairy Queen making $5.25 per hour. She said she lost about week of work. The evidence in regard to loss of wages is not very specific, however, am satisfied that her loss would amount to approximately $300.00 including some days that she said that she lost because of headaches after she had returned to work. After her injury, the plaintiff got an eye infection for which she used an antibiotic. She paid $12.49 for that and $60.00 for the ambulance to take her to the hospital. would, if she had been successful, have allowed these special damages. The plaintiff claims for pain and suffering. Her evidence is that she had fairly severe headaches in the weeks following the accident. She also had nose bleeds and complained about charley horse in her leg. The medical evidence does not detail the complaints other than the cut to her head. The plaintiff, through counsel, submits that damages should be $10,000.00 for pain and suffering. Based on the evidence of the plaintiff, would award damages for pain and suffering in the amount of $6,000.00 if she had been successful on liability.
The plaintiff fell while entering a canteen operated by the defendant. She claimed to have tripped on the concrete sidewalk located in front of the canteen. Others testified that she tripped on the door threshold of the building. Dismissing the claim, that the plaintiff's evidence of where she tripped is unreliable. Furthermore, there was no unusual danger on the premises.