If a volunteer falls off a ladder, and there is no one around to see how or why they fell, who is liable?
The Court addressed this question in Baltadjian v The Roman Catholic Episcopal Corporation for the Diocese of Alexandria, 2017 ONSC 61 (CanLII).
Background
Hrant Baltadjian (the Volunteer) was a parishioner who fell off a stepladder he was using to complete repairs to his church. No one saw him fall and he had no recollection of the incident. He suffered a head injury and was in a coma for 25 days.
Richard Jarvis (Jarvis) was a volunteer supervisor, who supervised the church’s team of volunteer painters, and had experience in workplace risk management. He was in another part of the building when he heard the thud, and did not see the Volunteer fall.
The Volunteer had been painting the church for several weeks, 3 times a week, for about 3 to 4 hours daily. On the day he fell, of his own volition and over Jarvis’ objections, he insisted on installing a short piece of trim to a 12 foot high wall ceiling junction.
The lawsuit
The Volunteer alleged that the church was negligent, and had breached its duty of care to him by failing to provide a ladder and other equipment that was safe and in working order; failing to properly supervise him; and allowing him to carry out the repairs.
The issues
- Did the church fail in its duties under the Occupiers’ Liability Act (OLA)? Subsection 3(1) of the OLA imposes on the church, as owner/occupier, a duty to take reasonable care so that persons and property entering its property are reasonably safe. Under subsection 4(1), this duty of care does not apply to risks willingly assumed by persons entering the property.
- Does the Occupational Health and Safety Act (OHSA) factor into the standard care owed by the church under the OLA?
- Did the Volunteer willingly assume the risks inherent to the task?
The decision
- The Church did not fail in its duties under the OLA, as explained below.
- The OHSA did not apply to volunteers. However, the OHSA standards are a reasonable indicator of whether the church’s conduct was reasonable. Based on these and other standards, the church provided a reasonably safe environment that ensured the reasonable safety of the Volunteer.
- The Volunteer willingly assumed the risks inherent to the task he was performing when he fell.
Similar cases
The parties in this case relied on ladder injury case law.
In cases where the owner and/or occupier defendants were not liable:
- In one case, the plaintiff did not complain of any ladder defects. He lost his balance for no apparent reason, and the court concluded that it was his negligence in losing his balance that caused his injury.
- In the other case, the plaintiff was a professional painter who agreed to reattach a cable on the defendant’s roof. He used his own ladder, and climbed up and down ladders of that height many times, and unassisted. His coworkers had also been up and down the ladder unassisted, a couple of times. The ground was dry and flat. No one asked the defendant to hold the ladder and the defendant was not in the area when the plaintiff fell. Before using the ladder, the plaintiff was satisfied that it was stable. The court concluded that the owner occupier was not under a duty to supervise or assist.
In cases where the owner and/or occupier defendants were liable:
- In one case, a volunteer fell from a ladder, but the premises were unsafe because the ground was wet and slippery. The volunteer had asked a defendant to hold the ladder for stability, but that defendant later abandoned his post without notifying the volunteer. The court found the owner of the premises 40% liable and the person who abandoned the ladder 30% liable.
- In the other case, the defendant had placed the ladder without securing it against the house and the base, before the plaintiff’s arrival. The plaintiff assumed the ladder was secure. The plaintiff was apportioned 30% liability for assuming the ladder was secure, especially since it had been placed by someone else, and the defendant was found 70% liable.
The relevant facts
In determining that the church was not liable, the Court evaluated the Volunteer’s skills and behaviour; the ladder and the work area; and the church’s supervision.
The Volunteer:
- Said he was comfortable working from a ladder and had prior experience doing so, even saying he did similar work at home all the time.
- Did not ask for ground support at any time.
- Insisted on doing the installation he was performing just before he fell, and, did so over Jarvis’ objections.
- Was never more than 6 feet off the ground.
- Had gone up and down the ladder several times over several weeks without incident, and, sometimes observed by Jarvis, who had not identified any issues.
The ladder and the work surface:
- The ladder met the required stability and dimension requirements for the type of work.
- No one complained about the ladder’s suitability.
- Jarvis himself had used the ladder and was confident in its stability.
- The Volunteer could not produce evidence of any defect in the ladder or other equipment.
- The work site was flat, stable and clear of debris.
Supervision:
- The church maintained general compliance observation over many weeks and hours.
- The Church instructed the Volunteer regarding the 3–point expectation (that is, use both hands to climb or descend the ladder, and maintain a minimum of a 3–point contact with the ladder—two hands and one foot, or two feet and one hand).
- Jarvis:
- Honoured reasonable observation and monitoring expectations.
- Was not required to maintain continuous visual contact of the Volunteer.
- Discouraged the Volunteer from doing the installation he was performing just before his fall.
- Was not in a position of authority over the Volunteer.
- Had observed the Volunteer working, and was confident in his competency.
The bottom line
The church provided a reasonably safe work environment that ensured the reasonable safety of the Volunteer. Even if there was an unreasonable risk of harm in the work environment, the Volunteer undertook the installation work of his own volition and contrary to Jarvis’ instructions. He assumed the variation in risk.
Proof of the church’s liability lies with the Volunteer—he is the Plaintiff. He was required to:
- Show how the church was negligent—he was unable to do this.
- Make a connection between the alleged negligence and his injuries or damages—he could not do this because no one witnessed his fall and he could not recall what happened. There are many ways to fall or lose one’s balance, and he just did not have any evidence as to the cause or the mechanics of his fall.
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