Taking a Long Walk Off A Short Pier
(and a deep dive into shallow water)

What are the duties of an occupier of a pier? The British Columbia Court of Appeal recently dealt in part with this issue in Duddle v. Vernon and North Okanagan Regional District [2004] BCCA 390.

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

http://www.courts.gov.bc.ca/jdb-txt/ca/04/03/2004bcca0390.htm

The Appellant municipalities appealed a summary trial decision wherein the trial judge found the Appellants 25% at fault for a spinal fracture suffered by Mr. Duddle. Mr. Duddle sustained the injury, which rendered him a quadriplegic, when he dove from the Appellants’ pier into shallow water.

The municipality had placed numerous signs prohibiting diving and warning that the water around the pier was shallow. There were signs located at each of the four entry points to the beach proclaiming the no diving rule. On the archway entrance to the pier, two signs said "No Diving" and two pictorial signs conveyed the same message. A series of large signs painted on the surface of the pier stated "No Diving. Shallow Water". Twelve signs attached to the side of the pier and spaced along its branches either displayed the words "No Diving" or graphically expressed the prohibition against diving.

The trial judge noted that Mr. Duddle admitted that he:

• was aware of the warning signs; understood the prohibition;
• knew it was dangerous to dive into shallow water;
• was aware that the water around the pier became more shallow closer to the beach, and
• and did not check the depth of the water.

The trial judge further found that the water was clear so that the bottom was visible. She also accepted expert opinion evidence that the warning signs posted on and around the pier exceeded the accepted waterfront safety standard in British Columbia.

Despite these findings, the trial judge based on Mr. Duddle’s submissions considered some additional measures that the Appellants could have taken to prevent the accident such as:

• removal of the pier;
• installation of guardrails;
• employment of lifeguards;
• erection of signs to indicate the actual water depth at the various spots around the pier;
• enforcement of the diving prohibition by security guards who were already patrolling the beach for other reasons.

The trial judge rejected all of these options except the last two which she found were reasonable steps that ought to have been taken. Accordingly, the trial judge concluded:

The Appellants contended that the trial judge erred in the following three ways:

1. in holding them to a standard of care higher than that of reasonable care in all of the circumstances;
2. in finding a causal link between their breach of duty and the injury suffered by Mr. Duddle; and
3. in determining apportionment of fault on a summary trial despite the presence of disputed evidence as to the relevant facts.

The Court of Appeal in an unanimous decision did not decide the third issue, instead holding that the appeal should succeed on the first two grounds.

The Court of Appeal found that the trial judge correctly set out the question to be decided:

The Court of Appeal found that the trial judge fell into error by answering the first question in the quoted passage rather than the second. She was lead to do so by Mr. Duddle’s submissions that the posting of the signs was not sufficient to discharge the duty of reasonable care and that further measures ought to have been implemented. In focussing on Mr. Duddle’s submissions, the trial judge was diverted from the proper question, which was whether the Appellants took reasonable care in all of the circumstances to see that Mr. Duddle was reasonable safe. The Appellants were not required "to do all [they] could have done" to prevent the accident as indicated by the trial judge. By setting this standard the trial judge erred by effectively fixing the Appellants to a standard of perfection and not that of reasonableness.

In dealing with the second error of law, the Court of Appeal found that the trial judge also failed to properly address the question of causation. Mr. Duddle was required to show on a balance of probabilities that, but for the appellants' failure to take reasonable care, he would not have suffered his injury. The trial judge had concluded that the breach of the duty to take reasonable care lay in failing to inform of the water depth by signs painted on the pier and in failing to orally reinforce the warnings against diving. However, the trial judge had also found that Mr. Duddle was aware of the no diving prohibition and of the consequences of diving in shallow water.

The Court of Appeal held that these findings clearly indicated that the omissions the trial judge attributed to the Appellants played no causal role in Mr. Duddle’s decision to dive. The Appellants could not be held liable for failing to warn Mr. Duddle of dangers of which he was already aware. Thus, the Court held that the trial judge’s conclusion that the failures to mark water depths on the pier and to orally reinforce the diving prohibition caused or contributed to Mr. Duddle’s injury was clearly wrong.

In dismissing the action, the Court of Appeal concluded that the sole cause of this tragic incident was Mr. Duddle’s failure to take reasonable care for his own safety.

Readers with questions are invited to contact Neo Tuytel (at 604- 643-3180; or njt@cwilson.com) or Gurminder Sandhu (at 604-643- 3173; or gss@cwilson.com) of Clark Wilson LLP's Insurance Group.