The Gardener Did It: Court Of Appeal Affirms General Principles respecting the Independent Contractor Defence in Occupiers Liability Claims

If a college student is injured as a result of a gardening mishap, is his educational institute liable for the gardener’s negligence where that gardener is not an employee of the college? No, says the BC Court of Appeal, provided that the college acted reasonably in the hiring and supervision of the gardener.

In Grochowich v. Okanagan University College, 2004 BCCA 325, the appellant was struck on the back of the head by the handle of a lawnmower protruding from a trailer being towed by a small tractor on a cement pathway on the North Kelowna Campus of the Okanagan University College ("OUC"). The Plaintiff sued the parties responsible for lawn and garden maintenance, as well as the OUC itself. It was agreed that the OUC was the occupier of the premises, and that the gardening defendants were independent contractors.

The OUC brought a Summary Trial application on the basis of section 5 of the Occupiers Liability Act, RSBC 1996, c. 337, which provides as follows:

The Chambers Judge held that it was reasonable for OUC to have an independent contractor perform the lawn and grounds maintenance on the campus, as the work was not inherently dangerous such that it could not be delegated, and there was no statutory public duty on OUC to prevent it from contracting out such work. He further held that OUC had exercised reasonable care in selecting the independent contractor based on successful past performance of similar work, the fact that they had submitted the lowest bid, and the fact that they had extensive experience in landscape maintenance. Finally, the Chambers Judge held that the extensive experience of the contractor meant that there was a minimal requirement for supervision by the OUC.

The Plaintiff did not take issue with the trial judge's conclusions that it was reasonable for OUC to hire an independent contractor or that reasonable care had been exercised in the selection of the contractor. However, he appealed Chambers Judge’s ruling that OUC had exercised reasonable care in the supervision of the contractor, and also argued that the College and Institute Act, RSBC 1996, c.52 imposed additional duties on the OUC beyond those set out in the Occupiers Liability Act.

The Court of Appeal confirmed the well established principles that an occupier of premises is not an insurer, and that the standard is one of reasonableness and not perfection. Nevertheless, an occupier does have a duty to make premises reasonably safe, and the requirement of s.5 in respect of supervision of independent contractors must be read to include supervision with regard to safety.

The Court went on to hold that the level of supervision may vary with the circumstances, and that while many of the OUC’s supervisory activities related to the performance of the landscaping and maintenance duties rather than specifically to matters of safety, the Chambers Judge had not misapprehended or overlooked evidence in deciding that the OUC had met an appropriate standard of reasonable supervision in respect of safety. The Chambers Judge had concluded that the standard had been met given the nature of the work being performed, the contractual obligations of the defendants, the years of experience and expertise of the defendants, the significant number of on-campus spot checks of the work, the experience and expertise of the supervisor, and the lack of any kind of similar incident at OUC or other colleges. As a result, the appellant’s argument was rejected.

The Court of Appeal went on to hold that the duties contained in the College and Institute Act added nothing to the OUC’s duty of care under the Occupiers Liability Act. They also held that there was no basis for interfering with the Chambers Judge’s ruling with respect to costs, which had also been raised by the appellant.

The lesson to be taken from the Grochowich case is that insurers relying on an independent contractor defence under section 5 of the Occupiers Liability Act must ensure that evidence of the occupier’s supervision of the contractor is properly developed in the first instance, with emphasis on matters of safety.

A copy of the Grochowich case is available on the BC Courts website at:

http://www.courts.gov.bc.ca/jdb-txt/ca/04/03/2004bcca0325.htm

Readers with any questions about the Grochowich case, or Occupiers Liability issues generally, are invited to contact Jonathan Hodes at jlh@cwilson.com or 604-643-3168 (direct dial).