Occupiers Liability Act - Reduced Responsibility of Occupiers of Rural Lands for Injury or Death #367

Jan 01, 2004

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By Gerry Neely
B.A. LL.B.

A man who took his two sons cycling over a trail on private land was thrown from his bicycle and ended up a quadriplegic, when he hit a metre-deep ditch concealed by a mound of soil. The cyclist sued for damages on the grounds that the owner breached the duty owed to the cyclist under the Occupiers Liability Act, RSBC 1966, c.377. Occupiers of premises are those in physical possession of premises, including land and buildings, over which they have responsibility and control.

Prior to an amendment in 1998, the Act imposed a duty upon every occupier of premises to take reasonable care in the circumstances to see that people who came onto the premises were reasonably safe. The 1998 amendment altered this duty for occupiers of rural land, shifting all risks of injury or death to a person who enters vacant or undeveloped rural premises for recreational purposes.

The amendment also established a reduced duty of care for occupiers of rural premises, to not act with reckless disregard for the safety of people who come onto their premises. The purpose of the amendment was to encourage landowners in rural areas to allow public recreational use of their land.

The trail in this case traversed a 145-acre parcel of land, vacant and undeveloped except for a discontinued sand and gravel operation. Although the land was within the City of Parksville, it was surrounded by rural land except on the easterly boundary, which bordered an industrial park. The owner had agreed to allow public use, without charge.

The owner filed a preliminary motion to have the action discontinued on the basis that the land was rural. The judge had no precedent, since this was the first reported case to interpret the Act's meaning of "rural premises."

In reaching his decision, the judge considered the present use of the land and surrounding lands, with no consideration of future use. The fact that the land was within a municipal boundary did not necessarily mean it should be considered urban land. Such land could have the same rural characteristics as, for example, the farmlands in Delta and the mountains of North Vancouver, which border urban areas.

He concluded the parcel was rural land. This meant the cyclist had to prove the owner acted with reckless disregard for his safety. While the cyclist had some evidence of two personal injury accidents occurring at the same place on the trail, he did not have the opportunity to obtain evidence under oath that might establish such reckless disregard.

The judge said it would be unfair to the cyclist to prevent him from continuing his action, considering his injuries and the difficulties he faced. Instead, the judge exercised his option to dismiss the owner's motion.1

If the cyclist's action does proceed, we may see a decision on what constitutes an owner's "reckless disregard" for safety.

The definition of "premises" includes land and structures; ships and vessels; trailers and portable structures designed or used for a residential, business or shelter purpose; railway locomotives and cars; and vehicles and aircraft while not in operation.

***

The effect of the Residential Tenancy Act or the terms of a lease may impose or relieve a landlord or tenant from liability as an occupier of premises. See Legally Speaking 109 and 235 for information.

  1. Hindley v. Waterfront Properties Corp.,, SCBC, Victoria Registry, Reasons for Judgment, June 10, 2002.

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