Reasons for Judgment of the Honourable Mr. Justice Smith:

[1]            This appeal is from a summary trial judgment for damages to be assessed against the City of Vernon, North Okanagan Regional District, and District of Coldstream.  In oral reasons for judgment, the learned trial judge found the appellants to be at fault as to 25% for a spinal fracture Mr. Duddle suffered when he dove into shallow water from the appellants’ pier at Kalamalka Lake.  The injury rendered him quadriplegic.

[2]            The appellants contend that the learned trial judge erred in three ways, namely:

1.    in holding them to a standard of care higher than that of reasonable care in all of the circumstances;

2.    in finding a causal link between their breach of duty and the injury suffered by Mr. Duddle; and

3.    in determining apportionment of fault on a summary trial despite the presence of disputed evidence as to the relevant facts.

[3]            I have concluded that the appeal should succeed on the first two grounds.  It is therefore not necessary to consider the third ground.

[4]            The relevant facts as found by the trial judge may be briefly summarized.

[5]            On 6 July 1998, 19 year-old Justin Duddle dove from the appellants’ pier at Kal Beach on the shore of Kalamalka Lake in Vernon.  He struck his head on the bottom of the lake and suffered a spinal fracture that has left him a quadriplegic.

[6]            At the time the accident occurred, the Greater Vernon Parks and Recreation Department maintained the pier.  That body was a standing committee with representation from the appellants City of Vernon, District of Coldstream, and North Okanagan Regional District.

[7]            The pier is in an “h” configuration. It consists of a long vertical arm stretching south from the beach into the lake, a horizontal arm that branches west from the midpoint of the long vertical arm, and a shorter vertical arm that extends south into the lake from the west end of the horizontal arm.

[8]            Water depth varies around the pier.  At the extreme south end of the pier’s two vertical arms, the water is nine feet to nine feet six inches deep.  On the north (beach-facing) side of the horizontal arm, at the point from which Mr. Duddle dove, the water is four feet ten inches deep.  From the north to the south side of the horizontal arm, which is ten feet wide, the water depth increases to six feet three inches.  At the extreme west end of the horizontal arm, the water is six feet six inches deep.

[9]            According to safety standards for diving, where there is a drop from the diving surface to the water of two feet or more, it is unsafe to dive into water eight to nine feet deep.  The drop from the pier to the surface of the water is between two feet and three and a half feet, depending on the season and water level.  Thus, at no point on the pier is it safe to dive into the water.

[10]        The City has placed numerous signs at Kal Beach that prohibit diving and warn that the water around the pier is shallow.  Signs located at each of the four entry points to the beach area proclaim the no-diving rule.  On the archway entrance to the pier from the beach, two signs say “No Diving” and two pictorial signs convey the same message.  A series of large signs painted on the surface of the pier state “No Diving. Shallow Water”.  Twelve signs attached to the side of the pier and spaced along its branches either display the words “No Diving” or express graphically the prohibition against diving.

[11]        Security personnel hired by the City patrol the beach in an attempt to enforce rules against consumption of alcohol and against other prohibited beach activities.  These officials do not, however, patrol the pier for diving infractions.

[12]        Beginning when he was eight years of age, Mr. Duddle attended Kal Beach a half-dozen to a dozen times each year.  On these occasions, he used the pier and swam in the area adjacent to the pier.  The trial judge observed that Mr. Duddle admitted that, at the material time, he: was aware of the warning signs; understood the prohibition against diving; knew it was dangerous to dive into shallow water because of the risk of sustaining head and spinal injuries; was aware that the water immediately around the pier became more shallow as one moved closer to the beach; and did not check the depth of the water in the area where he dove on 6 July 1998.  The trial judge found further that the water on the north side of the horizontal arm of the pier, where Mr. Duddle dove, was clear enough that the bottom was visible.  She said:

[19]  ...Given that neither Mr. Duddle nor his friends who were with him on the day of the accident had ever dived into the area before, despite having grown up in the area and attended Kal Beach and used the pier for swimming, jumping and some diving on numerous occasions every summer over several years, I find that Mr. Duddle was aware that the water there was shallower and more unsafe for diving than in any other area in which he had ever dived before.

[13]        The trial judge noted that the applicable duty of care is set out in subsection 3(1) of the Occupier’s Liability Act, R.S.B.C. 1996, c. 337:

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 ... will be reasonably safe in using the premises.

[14]        She accepted expert opinion evidence that the warning signs posted on and around the pier exceeded the accepted waterfront safety standard in British Columbia.  However, she did not consider that fact to be dispositive of whether the standard of care was met in the circumstances.  She noted that, despite the clear and well-placed warning signs, a small percentage of people ignore the diving prohibition and dive from the pier into the water.  As a result, she said:

[23]  ...The question then arises whether the municipal defendants owe a duty to eliminate the risk that a certain percentage of the population will engage in this potentially dangerous activity or, alternatively, whether their duty extends to doing more than they have actually done.

[15]        The trial judge found that the appellants were unable to make the pier safe for diving and, accordingly, that by erecting the signs they had “put the water area around the pier off limits to the activity of diving”.  She relied on the following passage from the reasons for judgment of Iacobucci J. in Waldick v. Malcolm, [1991] 2 S.C.R. 456 at 457, 83 D.L.R. (4th) 114 at 128, where he was considering language in the Occupiers’ Liability Act, R.S.O. 1980, c. 322, s-s. 3(1) which is in substance identical to the British Columbia provision:

The goals of the Act are to promote, and indeed, require where circumstances warrant, positive action on the part of the occupiers to make their premises reasonably safe.  The occupier may, however, wish to put part of his property “off limits” rather than to make it safe, and in certain circumstances that might be considered reasonable.

[16]        Next, she stated, properly, the question to be decided:

[31]...The test at law is not whether anything could have been done to prevent the injury using 20/20 hindsight, but rather whether the steps taken by the occupier were reasonable in all the circumstances.

[17]        However, with respect, the trial judge fell into error by answering the first question in that passage rather than the second.  She was led to do so by Mr. Duddle’s submissions that the posting of the signs was not sufficient to discharge the duty of reasonable care and that further measures should have been implemented.  Thus, she canvassed discretely four steps that Mr. Duddle contended should have been taken: erection of signs that indicate the actual water depth at various spots around the pier; installation of guardrails; employment of lifeguards; and removal of the pier.

[18]        The trial judge rejected guardrails as an unsatisfactory alternative measure.  She considered that the possibility that the rails themselves could be used for jumping and diving would only increase the risk to the foolhardy.  As well, she rejected the submission that the failure to hire lifeguards to enforce the prohibition against diving was a breach of the duty of care.  She reasoned that the decision Vernon city council made in 1974 to dispense with lifeguards at Kal Beach for budgetary reasons was a policy decision with which she could not find fault.  Further, she considered that removal of the pier was an unsuitable alternative.  On this point, the trial judge adopted the reasoning in Tomlinson v. Congleton Borough Council (2003), [2004] 1 A.C. 46, [2003] UKHL 47 ¶ 81 (H.L.), which she quoted, in part, as follows:

…[I]t is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled.

[19]        She observed that earlier consideration of removing the pier because of disrepair had met with considerable public opposition.  She added that the Occupier’s Liability Act requires an occupier to act reasonably but does not require the occupier to determine and implement procedures to protect those who deliberately ignore clearly defined rules put in place by the occupier for the benefit of visitors’ safety, referring to Kennedy v. Coquitlam (City) (2002), 31 M.P.L.R. (3d) 102, 2002 BCSC 1057.

[20]        Nevertheless, the trial judge concluded that attempts to enforce the diving prohibition by the security guards, although they would not have prevented violations, would have reinforced the warning signs and indicated that they should be taken seriously.  She said:

[37]  ...Security personnel do patrol the beach to attempt to enforce no alcohol and other prohibited beach activities.  They do not however patrol the pier for diving infractions.  The plaintiff suggests that there is no explanation as to why the security patrol could not patrol the pier and enforce the no diving prohibition.  There are severe limitations on effectiveness of such a measure.  First, the patrols would have to be much more frequent, and no doubt there would still be diving, particularly when patrols were gone.  However, in my view, an attempt at enforcement, however inadequate, would likely reinforce the warning signs and indicate how seriously they should be taken.  It would appear to require little further expense.  And as the plaintiff points out, no evidence was presented on behalf of the defence as to why they could not attempt to enforce the diving prohibition. This alternative appears to be reasonable.

[21]        In addition, the trial judge found fault in the failure to post signs to indicate the actual water depth at the place where Mr. Duddle dove.  She concluded:

[54]  Thus, on all of the evidence, I find the municipality did not do all it could have done to prevent this accident in all of the circumstances.  In summary, it was foreseeable that diving from the pier into the shallow water was not unlikely.  Diving from many places on the pier was happening before the accident on the pier.  Thus, it was foreseeable that the prohibition against diving displayed on the signs was not a fail-safe.  Putting water depth markers along the pier indicating where it was shallowest would have provided additional relevant information warning of the increased risk at the place where Mr. Duddle did dive.

[55]  Further, and importantly, as a correlative of the inadequacy of the signs to prohibit diving, was that there was no attempt to enforce or reinforce the signage warnings by the existing security patrol.  Thus, these two factors, providing conflicting information to Mr. Duddle about the risk of diving from the north side where he did, were foreseeable by the municipality, and apparently within reasonable means of the municipality to remedy.

[Emphasis added]

[22]        In focussing on Mr. Duddle’s submission, as she did, the trial judge was diverted from the proper question, which was whether the appellants took reasonable care in all of the circumstances to see that Mr. Duddle was reasonably safe.  They were not required “to do all [they] could have done” to prevent the accident.  The trial judge effectively fixed the appellants with a standard of perfection.  Her application of an incorrect standard was an error of law.

[23]        Moreover, the trial judge failed to address properly the question of causation.  Mr. Duddle was required to show on a balance of probabilities that, but for the appellants’ failure to take reasonable care, he would not have suffered his injury: Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235 ¶ 13-14.

[24]        The trial judge concluded that the breach of the duty to take reasonable care lay in failing to inform Mr. Duddle of the water depth by signs painted on the pier and in failing to orally reinforce the warnings on the signs prohibiting diving.  She said:

[57]  However careless he was, there were conflicting signals as to the risk, which were the fault of the municipality.  A water depth notice of just how shallow it was may very well have been all the information he needed to be reminded of why he had never dived there before.  And further, if he had ever witnessed persons being warned or been warned himself by security patrols, he may have taken the signs more seriously.

[Emphasis added]

Thus, the trial judge accepted proof of causation to a standard less than the balance of probabilities.  In doing so, she erred in law.

[25]        Further, she concluded:

[45]  ...Mr. Duddle knew there was a no-diving prohibition.  He knew the reason was that the water was too shallow to safely dive.  He knew that if he dived into too shallow water, the consequences could be serious head and neck injury.  Mr. Duddle was an adult and experienced at swimming and diving at the beach and he knew that the water grew shallower as it neared the beach progressively....

[26]        Later, she said:

[56]  ...I find [Mr. Duddle] had, in fact, all the information he needed to assess the risk.  And in particular, my finding by inference is that Mr. Duddle knew, although he clearly ignored his own knowledge, that the water on the north side was shallower and even less safe for diving than the south side.

[27]        With respect, these are clear findings that the omissions the trial judge attributed to the appellants played no causal role in Mr. Duddle’s decision to act as he did.  The appellants cannot be held liable for failing to warn him of dangers of which he was already aware.  Thus, the conclusion that the failures to mark water depths on the pier and to orally reinforce the diving prohibition caused or contributed to Mr. Duddle’s injury was clearly wrong.

[28]        The trial judge referred to the decision of this Court in Gerak v. British Columbia (Minister of the Department of Lands, Parks and Housing) (1984), 59 B.C.L.R. 273 (C.A.) [Gerak], leave to appeal to S.C.C. refused (1985), 60 B.C.L.R. xxxix, in her analysis.  That case concerned a diving accident at Cultus Lake.  Mr. Gerak suffered spinal injuries and paralysis as a result of hitting his head on the bottom of the Lake when he dove into shallow water after running about one hundred feet from the shore on a public wharf in a provincial park.  He had never been to the park before.  The area was extremely busy and he did not notice that the bathers could stand waist high in the water.  The wharf was in an area restricted to swimming.  Expert evidence, accepted by the trial judge, established that an ordinary person in Mr. Gerak’s circumstances immediately before he executed his dive, not being able to see the bottom because the water was murky, would have reason to believe that the area was safe for swimming and diving in the absence of any signs warning of danger.  There were no such signs.   Mr. Gerak testified that he assumed that the further along the wharf he got the deeper the water would be and that it was probably safe to dive at that point. 

[29]        In Gerak, the trial judge concluded that the wharf constituted an invitation to dive and granted judgment against the Crown.  This Court dismissed an appeal.  Mr. Justice Macfarlane, who gave the principal judgment for the majority, observed, at p. 296, that the trial judge found that, on an objective test of reasonableness, “the pier in question gave a misleading appearance of safety such that an ordinary, reasonable user would have had reason to believe it was safe to dive in the area in question” and that it was foreseeable that such a person, like Mr. Gerak, would be led to believe it was safe to dive. 

[30]        By way of contrast, Mr. Duddle did not testify that he assumed it was safe for him to dive.  Moreover, there was no evidence to support any inference that the pier constituted an invitation to dive or any assumption on his part that it was safe to do so.  As I have said, the trial judge found that he knew of the prohibition and the reason for it and was well aware of the danger when he decided to dive from the pier.

[31]        Of particular interest is that, in Gerak, there was expert testimony that the safety precautions that the Crown should have taken included prominent signs warning against diving, supervision by lifeguards, depth markers, and perhaps some sort of a guard railing along the sides of the wharf.  Mr. Justice Macfarlane noted that none of these precautions had been taken and observed at p. 298: “If some or all of the precautions had been taken by the defendant, then the duty of care may have been satisfied.”  Ironically, the reasoning in Gerak guided the appellants when they installed the existent signs following a diving accident on the pier ten years previously.  It is worth noting that, until Mr. Duddle’s injury, there had been no diving accidents at the pier since these signs were installed.

[32]        In my view, the sole cause of this tragic incident was Mr. Duddle’s failure to take reasonable care for his own safety.  For the reasons I have stated, the trial judge erred in finding otherwise.

[33]        Accordingly, I would allow the appeal, set aside the judgment appealed from, and dismiss the action.

“The Honourable Mr. Justice Smith”

I agree:

“The Honourable Madam Justice Levine”

I agree:

“The Honourable Mr. Justice Lowry”