Gladys Watt (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Heald J.—Ottawa, March 13, 14
and 19, 1973.
Crown—Tort—Crown as occupier—Architectural exhibi-
tion—Public admitted free—Duty of care owed persons
attending—Woman falling off raised platform—Whether li
censee or invitee.
Plaintiff, a woman of 82, attended an architectural exhibi
tion put on by the National Capital Commission at the
Federal Government Conference Centre in Ottawa. The
public was invited by press notices and there was no admis
sion charge. While inspecting one of the exhibits on display,
plaintiff fell from a platform raised about one foot above the
floor level and suffered injury.
Held, the Crown as occupier of the premises was liable in
tort for plaintiff's injuries under section 3(1)(b) of the
Crown Liability Act, R.S.C. 1970, c. C-38. Although plain
tiff falls readily in neither the category of licensee or invitee,
the standard of care owed her by the Crown was that owed
to an invitee.
Indermaur v. Dames (1866) L.R. 1 C.P. 274; Campbell
v. Royal Bank of Canada [1964] S.C.R. 85, applied.
MOTION.
COUNSEL:
Donald D. Diplock, Q.C. for plaintiff.
Robert Vincent for defendant.
SOLICITORS:
Honeywell and Wotherspoon, Ottawa, for
plaintiff.
Deputy Attorney General of Canada for
defendant.
HEALD J.—The plaintiff is claiming compen
sation for the damages suffered by her from
bodily injuries which she sustained as a result of
an accident which occurred on June 10, 1971 at
the Federal Government Conference Centre,
situated on Rideau Street, in the City of Ottawa.
The plaintiff is a widow, aged 82 years at the
time of the accident and her residence at all
material times was and is now in the City of
Ottawa.
She testified that it was her custom to attend
any display or exhibition in the Ottawa region
which attracted her interest and that, sometime
prior to June 10, 1971, she read in the daily
press that there was going to be an architectural
exhibition entitled "The Architectural Vision of
Paolo Soleri". Paolo Soleri is a distinguished
American architect. The press notice invited the
public to attend and there was no admission fee
for attendance. The exhibition was under the
auspices of the National Capital Commission of
Canada and was held in the Federal Govern
ment Conference Centre in the building former
ly known as the Union Station on Rideau Street
in downtown Ottawa. The exhibition ran from
June 8, 1971 to July 24, 1971, and at the outset,
was open to the public from 10 a.m. to 6 p.m.
daily. Later on, in response to considerable
public interest, the daily viewing hours were
extended to 9 p.m.
The plaintiff decided to attend said exhibition
and, accordingly, on June 10, 1971, she pro
ceeded by bus from her home on Powell
Avenue to the Conference Centre on Rideau
Street, arriving there at about 4 p.m. She visited
the exhibition alone.
Plaintiff entered the Conference Centre by
the Rideau Street entrance proceeding down the
main steps and into the main conference hall
where most of the said exhibition was on dis
play. As she proceeded down the main steps
and entered said main conference hall, she was
proceeding in a southerly direction. The main
conference hall runs in an east-west direction at
right angles to the Rideau Street entrance. After
she entered the main conference hall, she pro
ceeded to her right to the westerly end of the
hall. The main conference hall measures
approximately 110 feet from one end to the
other. At each end of the hall there is a raised
platform which is a permanent installation in the
hall. Said platforms were installed when the
conference hall was constructed several years
ago and are still there. It is about 80 feet from
platform to platform. The platforms are about
one foot above the level of the main conference
hall floor. Access is provided to the platforms
from the main floor by several small stairs
arranged at intervals around the platforms. The
platforms, the steps and the entire main floor
area have, at all material times, been covered
with a dark red broadloom type carpet. There is
no difference in colour, texture or design of the
carpet on the platform, the stairs or the main
floor.
The Soleri exhibition can best be described as
one architect's concept of how architectural
designs can be expected to develop in the
future. It represented Soleri's "architectural
vision".
The exhibition included approximately 100
architectural models, large and small, vast scroll
drawings and detailed architectural renderings.
Two major architectural models, several
smaller models and a number of drawings were
arranged in the main conference hall. The bal
ance of the exhibition was displayed in other
rooms adjoining the main conference hall.
One of the two major architectural models
was positioned at the westerly end of the main
hall. This model was described by the witnesses
as being a brown walnut-shaped model. The
other major model was positioned at the easter
ly end of the main hall and was described as a
white plexiglass model representing the archi
tect's concept of a complete city of the future
including homes, factories, playgrounds, etc.
One witness described this exhibit as showing
"half a million people in a beehive". This same
witness, (Mrs. Dorothy Waines) said that a
number of the other models were models of
possible bridges for the future. She described
them as being "way out" in design. Exhibit
P-1-B is a photograph of the main hall area
while the exhibition was in progress and is
taken, looking from east to west, showing the
white plexiglass model in the foreground (east
end) and the large brown model in the west end
with a number of pictures and drawings dis
played in between. The exhibition was set up in
such a way as to encourage the public to move
from the major exhibit at one end to the major
exhibit at the other end viewing the drawings
and pictures in between as they made their way
from one end to the other.
The plaintiff, after reaching the westerly end
of the hall, proceeded to observe the large
brown walnut-shaped exhibit for a few minutes,
walking around it while she was observing it,
spent a few minutes conversing with one of the
commissionaires (the witness, Edward Renaud)
in front of said exhibit, and then moved along
the main floor toward the large white plexiglass
exhibit in the east end of the hall.
Said large white plexiglass exhibit was mount
ed on a dark coloured plywood base constructed
by carpenters employed by the National Capital
Commission. The way in which this exhibit was
mounted and installed, is clearly shown in the
photograph marked as Exhibit P-1-A. Exhibit
P-1-A was taken looking toward the east end of
the hall from the main floor. The exhibit was
mounted out from the easterly end of the hall a
few feet enabling the public to walk completely
around the exhibit, thus ensuring maximum visi
bility. Exhibit P-1-A shows members of the
public walking alongside the exhibit on both
sides.
Because of the length of the exhibit, the rear
portion of the plywood base rested on a portion
of the platform or elevated area, while the front
portion rested on the main floor of the hall. The
left side of Exhibit P-1-A clearly shows the way
in which the plywood base was constructed so
as to result in a level surface upon which to rest
said plexiglass model, since the rear area floor
surface was one foot higher than the front area
floor surface.
Exhibit P-1-A shows stairs on the north side
of the plexiglass exhibit almost midway from
rear to front. Although Exhibit P-1-A does not
show it, there were identical stairs on the south
side of the exhibit.
I am satisfied from the evidence that this
plaintiff proceeded to view said exhibit, com
mencing to view it at the front on the south side
thereof, that she proceeded to the rear of the
exhibit using the stairs on the south side of the
exhibit and then around the rear of the exhibit.
Exhibit P-1-A shows that members of the public
at the rear of the exhibit would have not only
the plexiglass exhibit to observe but also vari
ous other drawings and pictures on the east wall
as well. That is to say, when a member of the
public was moving from the south side of the
exhibit to the north side, at the rear thereof,
there were exhibits on both sides which were
placed there so that the public would be
encouraged to view them as they moved along.
The evidence of the witness, Edward Renaud,
employed at that time as a commissionaire by
the National Capital Commission, establishes
that the plaintiff came around the north-easterly
corner of the exhibit and proceeded in a wester
ly direction toward the front along the north
side. Renaud says she was walking forward
slowly and looking sideways at the plexiglass
exhibit. At or shortly after she turned the
corner, her attention was attracted by a smaller
exhibit which was located to the north of the
large white plexiglass exhibit. This exhibit was a
metal display either of a building or a bridge,
mounted on a white stand and placed only about
six inches from the edge of the platform. Exhib
it P(1)(i) shows, the white stand on which this
exhibit was placed. This exhibit was placed in
such a position that it was obviously intended
that members of the public proceeding, as did
the plaintiff, around the north-east corner of the
large white plexiglass exhibit and proceeding
west along the north side, as did the plaintiff,
would have architectural exhibits on both sides
of them to view and observe. The evidence is
clear that the exhibits were deliberately posi
tioned in this manner to encourage the public to
view exhibits on both sides as they walked
along.
Renaud says that plaintiff, as she walked
along, seemed to be intent on said smaller
exhibit to her right and ahead of her and that
she seemed to move away at an angle toward
the smaller exhibit. He says that he recognized
her as being the lady who had spoken to him at
the westerly end of the building in front of the
brown exhibit and while he did not watch her
continuously as she moved along, he did
observe her from time to time. He said that she
seemed to be intent on the small exhibit and he
observed that as she was looking at it she
appeared to be very close to the edge of the
platform. He said that he called out to warn her,
but that since he was some distance away, she
did not hear him and that she then took a step
with her left foot; that she stepped out into
space, thereby falling and injuring herself. The
time of the accident was established to be
approximately 4.30 p.m.
Renaud was a credible witness and an
independent one. He is no longer employed by
the National Capital Commission. He had a
good vantage point from which to observe plain
tiff's movements and I accept his evidence as to
the way in which this accident occurred.
Between 1.30 p.m. and 2 p.m. on June 10,
1971, the same day that the plaintiff visited this
exhibition, one Mrs. Dorothy Waines of Ottawa
also visited the exhibition accompanied by her
husband. She testified that, like the plaintiff, she
also entered the hall from the Rideau Street
entrance and, like the plaintiff, she also moved
to the west end of the hall after entering, viewed
the brown exhibit at the west end, moved
toward the easterly end of the hall where the
large white plexiglass exhibit was positioned,
went up the stairs on the south side of said
exhibit, moved around the rear of the exhibit
and then proceeded slowly toward the front
along the north side of the exhibit. She said she
was walking slowly along, completely absorbed
in the white plexiglass exhibit. She found it to
be a "far out exhibit" but very interesting
indeed. She forgot that she had ascended stairs
on the other side and she did not see the stairs
immediately in front of her as she moved along
the north side. The result was that she fell down
the same stairs as did the plaintiff some three
hours later, landing flat on her back. Her ankle
apparently turned in the fall but she suffered no
serious injuries so did not report her accident.
She said that she fell because the platform sur
face, the stairs and the main floor area were all
covered by the same red carpet, that this con
stituted a "complete menace". She said that all
she could see was red carpet and that neither
the stairs nor the one foot depression were
visible. She said that her accident would not
have happened if there had been a different
coloured carpet on the two levels or if there had
been a white strip to mark the difference in
height levels. Her comment, with respect to the
white strip, was prompted by photographs
shown to her (Exhibits P-1-C and P-1-D) which
show that, at all relevant times and for several
years prior thereto, at the southern exit from the
main conference hall, where the main floor red
carpeting meets the stairs, there existed a 2 inch
wide strip of white rubber nosing, extending
across the width of the stairs. In that area, the
stairs are carpeted in the same manner as they
are where the plaintiff and Mrs. Waines fell, i.e.,
the same dark red broadloom carpet.
Mrs. Waines said that if there had been a
change in the carpet colour or a white strip, she
would not have fallen. She was positive in her
opinion that neither the stairs nor the difference
in height level of the floor were visible. Mrs.
Waines was 65 years old at the time of the
accident and in good health. I found her to be
alert, intelligent and completely credible.
The defendant sought to attach significance to
the fact that both the plaintiff and Mrs. Waines
were wearers of bi -focal glasses. Both ladies
testified that they could see perfectly well
through their glasses, even though they were
bi-focals and I accept their evidence in this
regard.
The defendant called as a witness, André
Lavigne, the Operations Manager of the Gov
ernment Conference Centre. Mr. Lavigne said
that some considerable time before the plain
tiff's accident, he asked the design architect of
the main conference hall why the white rubber
strip or nosing was placed at the southern exit
from the hall and not in other places in the hall
where there were carpeted stairs. The explana
tion given him was that the purpose of the white
strip was to preserve the wear on the carpet and
that the south exit was a high traffic area,
whereas the steps in the east and west ends of
the hall were not in a high traffic area. Mr.
Lavigne agreed, however, that the white strip
was also a "vision spot". He also said that after
the plaintiff's accident, he raised the question of
the white strip for other stairs in the hall once
again with his superiors but that no action
resulted. Lavigne also testified that, the same
evening of the accidents to the plaintiff and
Mrs. Waines, the area of the stairs on both sides
of the white plexiglass exhibit were roped off by
a white rope or wire attached to a white post
and these ropes continued to be there for the
duration of the exhibition. The result was that
the public thereafter were not exposed to the
stairs in question. Exhibit P(1)(i) shows the said
rope and post preventing the use of the stairs
down which the two ladies fell.
Counsel for the defendant conceded at the
outset that the Crown was the occupier of sub
ject premises at all relevant times and that the
provisions of section 3(1)(b) of the Crown Lia
bility Act (R.S.C. 1970, c. C-38) apply thus
making the Crown liable in tort for damages in
respect of a breach of duty attaching to the
ownership, occupation, possession or control of
property.
On the facts of this case, I have concluded
that the standard of duty which the defendant
owed to this plaintiff is, at least, as high as that
due to invitees.
This plaintiff falls into a class of visitors
which does not fit neatly into either the catego
ry of licensee or invitee, a class which may be
described as entering "of right". (See: Fleming,
Law of Torts, 4th ed., pages 387 and 388 for a
useful discussion on "Entry as of Right".) There
was a special and different kind of relationship
between the occupier of these premises and the
class of persons which included this plaintiff. A
number of Federal Government agencies were
involved in sponsoring subject architectural
exhibition. Federal funds were expended to
make the display available for public viewing. In
modern times, there has been a growing tenden
cy to expend public funds for such purposes.
Such exhibitions can certainly be considered to
be of intellectual advantage to members of the
public and for this reason, I conclude that the
"material interest" which has, historically, enti-
tied an invitee to a higher standard of protective
care, has been established on the facts of this
case. In this case, there was a clear invitation to
members of the public to attend this exhibition;
it was advertised rather extensively in the
media; and finally, members of the public were
encouraged by the defendant to attend without
any admission charge.
The authoritative case on the standard of care
due to invitees is the case of Indermaur v.
Dames (1886) L.R. 1 C.P. 274 at p. 288, where
Willes J. said:
We consider it settled law that the invitee, using reason
able care on his part for his own safety, is entitled to expect
that the occupier shall on his part use reasonable care to
prevent damage from unusual danger, which he knows or
ought to know;
In the case at bar, there was nothing unusual per
se or inherently dangerous per se about the way
in which the stairs leading to the two platforms
were constructed. However, one of the main
causes of plaintiff's accident was the lack of
contrast in the carpeting between the two floor
levels. The evidence before me is very strong
that it was very difficult, if not impossible, to
see either the steps or the difference in levels. It
is not without significance that a white rubber
nosing had been installed at another exit to the
room to mark the difference in floor levels. The
witness, Lavigne, acknowledged that such a
strip would have aided visibility a great deal. It
would have been a relatively easy matter to
avoid this dangerous condition by installing
such a white rubber strip at the location of the
platform stairs. Mrs. Waines testified that under
similar circumstances, in the National Arts
Centre at Ottawa, they had found it necessary
to install white strips because without such
vision spots, a number of people had fallen. Of
course, if the defendant had not wanted to do
that, it could have adopted the expedient, which
it did in fact adopt immediately after the plain
tiff and Mrs. Waines fell on subject stairs, that
is, they could have barred entrance via the stairs
by means of a rope attached to posts. There is
no evidence that this expedient which was
adopted for the balance of the exhibition (the
entire exhibition except the first three days)
hindered or impeded the success of the exhibi
tion in any way. Seemingly, the exhibition was
quite successful attracting in excess of 27,000
people. Mr. Justice Spence said, in the case of
Campbell v. Royal Bank of Canada [1964]
S.C.R. 85 at p. 96 that:
It is perhaps a test of some value to determine whether a
condition is one of unusual danger to investigate the ease by
which the occupier might avoid it. ... If the danger could
have been prevented by these economical and easy precau
tions then surely a member of the public frequenting such a
busy place as this bank would have been entitled to expect
such precautions or others equally effective, and their
absence would tend to make the danger an "unusual" one.
In my opinion, another important cause of
plaintiff's accident was the failure of the
defendant's staff to recognize the considerable
difference between the usage of the hall for
subject exhibition and its normal usage. This
was the first time in the years since this confer
ence hall was constructed in 1968 that it had
been used for an exhibition like this. Normally,
the hall was used for Government conferences
and meetings. At such conferences, the practice
was to use the raised platforms to seat delegates
and visitors. In these circumstances, most of the
"traffic" was from north to south. The delegates
entered from Rideau Street by the north door,
there was no problem with the steps there
because said steps were not carpeted, they were
marble, there was no difficulty in seeing them.
Then, during the conferences, there was consid
erable traffic out through the south door to the
delegates' lounge. However, as we have seen,
there was a white strip aiding vision at the south
steps.
When we come to look at the traffic flow
during this exhibition, the entire exhibition was
designed and positioned in such a way as to
encourage the public to move from west to east
and vice versa, thus necessitating maximum
usage of the carpeted stairs at both the east and
west platforms. It seems to me, that defendant's
staff failed to give due consideration to this
altered use of the conference hall and to the
potential dangers arising therefrom. Then, of
course, there was the placing of architectural
exhibits on both sides of the "path" which the
public were expected and encouraged to use
while viewing the white plexiglass exhibit. At
both the north stairs and the south stairs flank
ing the white plexiglass exhibit, the said exhibit
was on one side of the viewer, and yet another
smaller exhibit was on the viewer's other side.
These exhibits were most interesting and stimu
lating and had the effect of taking the public's
attention away from the floor and walking sur
face and focusing it on the exhibits. Both ladies
who fell were completely engrossed by the
exhibits and were encouraged to be so preoc
cupied by defendant's staff in their positioning
of the exhibition. Mrs. Waines fell because she
was intent on the white plexiglass exhibit. The
plaintiff fell because she was intent on the
smaller exhibit to her right, situated a mere six
inches from the edge of the platform. There was
no warning of any kind, no railing—absolutely
no indication that the stairs were there.
I am satisfied in the circumstances of this
case, that the defendant did not use reasonable
care to prevent damage from unusual danger,
which she knew or ought to have known. The
defendant, however, submits that the plaintiff
was not using reasonable care on her part for
her own safety. I cannot agree with this submis
sion. The plaintiff, while being a lady of
advanced years, was very agile and active. She
walked a great deal every day, did her own
housework and was, in every respect, the kind
of visitor to the exhibition that was normal in
every respect, one that defendant could reason
ably expect to respond to its publicized invita
tion for public participation. The same is true of
Mrs. Waines, who also fell on the same stairs.
She was nearly twenty years younger than
plaintiff, likewise a very active and alert person.
Both ladies could see quite well with the glasses
they were wearing. I am satisfied that both of
these ladies were using the premises in the way
in which it was intended they use it. I am,
accordingly, satisfied that the plaintiff was using
reasonable care for her own safety. The plaintiff
is, therefore, entitled to be compensated for the
damages she suffered as a result of this injury.
Plaintiff claims special damages in the sum of
$2,089.63 and in my view, these special dam
ages were proved at the trial. The only item of
special damages to which counsel for the
defendant took exception was the sum of
$315.00 paid to a Mrs. J. O'Keefe for services
rendered to the plaintiff for the three week
period following the plaintiff's release from hos
pital. The plaintiff lives alone. When she was
released from hospital, she was still sufficiently
disabled so as to make it impossible for her to
look after herself. Accordingly, she engaged
Mrs. O'Keefe, a practical nurse, who lived with
her and looked after her for three weeks until
she was able to care for herself. Defendant's
counsel submits that such an amount is some
what on the high side. However, the fact is that
the plaintiff paid Mrs. O'Keefe this amount and
that said amount was the charge made by her
for her services. Defendant tendered no evi
dence to show that such a charge was unreason
ably high and I am prepared to allow it. In my
opinion, such a charge for three weeks of con
tinuous care is not inordinately high.
Dealing now with the question of general
damages. In the accident, plaintiff suffered inju
ries to her shoulder consisting of a fracture of
the shaft of the right humerus which was treated
by a closed reduction and immobilization in a
plaster splint. She also fractured the second
metatarsal bone in her left foot. When she fell,
she fell on her face and nose resulting in a
number of contusions on her face. She was
hospitalized immediately and remained in hospi
tal until July 2. The splint was not removed until
July 14. Her injured left foot was very painful
indeed. She says she was in continuous pain
with her foot all the time she was in hospital.
She has had to walk with a cane since the
accident because her foot is not reliable, she
says it gives way from time to time. Before the
accident, she walked a great deal, doing all of
her own shopping. Now she has to be taken
shopping in a car once a week.
The shoulder has completely recovered
although there may be some limitation in the
movement of the elbow in the future. The evi
dence satisfies me that plaintiff will have very
little, if any, permanent disability.
She did, however, suffer considerable pain,
suffering and shock. Her enjoyment of the
amenities of life has been reduced to a consider
able extent. She is no longer able to go for long
walks. She is restricted to some extent in one of
her earlier pleasures, visiting various galleries
and exhibitions, etc. Her ability to indulge in the
various pleasures of life has been interfered
with.
Taking all of these factors into consideration,
I award the plaintiff the sum of $2,500 in gener
al damages.
Accordingly the plaintiff will have judgment
against the defendant as follows:
(a) in the sum of $2,089.63 by way of special
damages;
(b) in the sum of $2,500 by way of general
damages; and
(c) the costs of the action to be taxed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.