- Apportionment (negligence)
- Negligence (contributory negligence)
- Transfer of costs
The worker was employed as a sales clerk by the accident employer at a large grocery store chain. On January 15, 2018, the worker tripped on a mat and fell inside the front entrance area of the store, suffering various injuries. Another Schedule 1 employer was the supplier of floor mats to the accident employer's store in which the accident occurred. The issue to be determined in this appeal was whether any or all of the costs of the claim should be transferred from the Schedule 1 employer to the accident employer, and, if so, what proportion of those costs should be transferred.
The Panel allowed the Schedule 1 employer's appeal. The Panel found that 50% of the claim costs should be transferred from the Schedule 1 employer to the accident employer.Section 84 of the WSIA is the relevant provision. OPM Document No. 14-05-01: "Transfer of Costs," defines common law, "negligence". Tribunal cases have accepted that common law principles of negligence apply to the determinations made under section 84. Decision No. 432/00 provides a summary of the elements of the tort of negligence. The questions are: (i) Did the Schedule 1 employer owe a duty of care to a class of persons that included the worker? and, (ii) did it breach that duty of care? The Panel then determined whether the Schedule 1 employer's negligence was the only proximate cause of the accident or instead whether either the accident employer or the worker were contributorily negligent in causing the accident. In a no-fault system, in which a worker can bear no costs, if a worker is found contributorily negligent in causing an accident, any costs attributable to that contributory negligence by the worker remain with the accident employer. The Panel found that the Schedule 1 employer owed a duty of care to all people expected to use the mats, including customers and the accident employer's employees. Although WSIA section 84 refers only to negligence, and it is not clear the extent to which this references only common law rules, or also incorporates contractual arrangements between parties that may purport to alter or shift responsibilities, none of the language in the Service Agreement was specific enough to alter or limit either party's common law duty of care. In addition, Decision No. 276/92 notes that the Occupiers' Liability Act (OLA) had been enacted to "modernize" the common law of negligence for occupiers, and since the OLA would be the standard a court would apply, it was the standard the Tribunal should apply (see Waldick v. Malcolm). As such, pursuant to OLA section 3, the accident employer owed a duty of care which was "reasonable" in the "circumstances of the case." The accident employer owed a duty of care to customers and employees, including the worker, to ensure a reasonably safe environment free from trip hazards. The Panel determined that the worker was not contributorily negligent and that both the accident employer and the Schedule 1 employer were contributorily negligent. The mats in question had ripples that caused raised edges, and this was a defect that caused the worker to trip. The mat therefore did not meet reasonable safety standards. When the Schedule 1 employer delivered such a mat and placed it in the store, it breached its duty of care to the expected mat users, including the worker, who suffered injuries as a result of that breach. In addition, the ripples or lumps in the mats were such that they would have been easily visible in an inspection aimed at ensuring the mats were safe and did not pose a trip hazard. The accident employer was negligent in failing to reasonably inspect their premises at reasonable intervals for trip hazards and thereby detecting the flawed mat, or if detected, negligent in failing to take any steps to ameliorate the danger. Each employer's share of liability for contributory negligence was appropriately fixed at 50%.