Plaintiff Claims Store Should Have Prevented Assault

If you become injured while at a commercial establishment, you may be entitled to recover damages against the business for your injuries. However, not every type of incident will lend itself to the business being liable. This was the case in a recent decision from the Supreme Court of British Columbia.

The events leading up to the trial

On the afternoon of October 23, 2003, the plaintiff visited the drug store owned and operated by the defendant company. The plaintiff was looking to exchange a defective ice bag he had previously purchased. While the plaintiff was talking to a store employee there were two other customers behind him (referred to as John Doe #1 and Jane Doe #2). They complained that the plaintiff was taking too long. John Doe #1 eventually asked the plaintiff if he wanted to fight. The plaintiff declined but was punched twice in the left eye by John Doe #1. The plaintiff was unconscious for a few minutes and suffered some injuries to his eye.

The employee working at the store testified that the situation escalated quickly, with about 5-10 seconds passing from when the plaintiff told John Doe #1 to “shut up” to when the punches were thrown. The entire event was captured on the store’s CCTV system.

Occupier’s Liability

Ontario’s Occupier’s Liability Act outlines the duty of care an owner of a premises has. They are as follows:

  • (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 the person’s property, on the premises, and property on the premises of a person, whether or not that person personally 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.

The court noted that although the Act does extend the occupier’s duty of care to the “conduct of third parties on the premises,” the Act does not render them vicariously liable for that conduct. Instead, liability can only arise after the plaintiff proves the occupier was at fault in not taking reasonable care to prevent it.

The business breach its duty to the plaintiff?

The plaintiff argued that the defendant company should have implemented policies to address instances similar to what occurred. At the very least he argued the employee should have acted more quickly to prevent the assault.

However, the court determined the defendant company did not breach its duty. The defendant company testified that its team of Loss Prevention Officers receive security training. Employees are also required to contact management if they experience verbal abuse. The court found that the employee followed company policy when the situation arose.

The plaintiff also argued the defendant company should have warned him about the risk John Doe #1 posed. However there was no evidence put forward to demonstrate the opportunity to do so came and went without being acted upon.

The plaintiff’s final argument was that the defendant company breached its duty to him by failing to detain John Doe #1 after the assault. However the court pointed out that Canadian courts have already rejected that type of duty of care.

The court ruled that while the assault committed against the plaintiff was extremely unfortunate, the mere existence of an assault does not in and of itself mean there was a breach of the defendant company’s duty of care.

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