A British Columbia court recently decided a case in which a customer sued a drug store after he was assaulted by another customer on the premises.
While this case was decided under British Columbia legislation, Ontario has similar, though not identical, legislation.
On October 23, 2003, a customer (the “customer”) was physically assaulted by another customer (the “assailant”) while standing at the customer service desk of a drug store, which was part of a drug store chain (the “drug store”). The male assailant was accompanied by a female companion (the “companion”). Neither the assailant nor his companion have been identified or apprehended.
The customer claimed that the assailant and his companion came up behind him as he was speaking to an employee (the “employee”) at the customer service desk. The customer stated that the companion interrupted his discussion with the employee, complaining that he was taking too long. He told her it wouldn’t take long and to wait her turn. The assailant then approached the customer to say in a more demanding and forceful tone that the customer was taking too long. The customer again said that he would not take too long, at which point the assailant challenged the customer to a fight. The customer declined to engage in a fight. The assailant then punched the customer in the left eye, after which he lost consciousness. He was brought to the hospital and had suffered injuries to his left eye. The event was captured on the drug store’s video surveillance.
The customer went to court to hold the drug store and the employee civilly liable for the injuries he suffered in the assault. His claim was initiated in common law negligence and under the British Columbia Occupiers Liability Act (the “OLA”). Because of procedural delays, the trial only occurred in 2019.
In his claim, the customer claimed that the drug store staff were negligent in failing to prevent the assault. Second, he claimed that the drug store staff failed to warn him about the risk presented by the assailant. Third, he claimed that the drug store staff failed to detain the assailant so that he could be identified, which would have permitted the customer to bring an action against the assailant for damages.
The drug store and the employee responded that a retail store does not owe a duty of care, either at common law or under the OLA, to prevent a random and sudden assault of a customer by another customer. It stated that the duty of the drug store is to ensure that persons using its premises are reasonably safe, having regard to the type of premises and the activities taking place. The drug store claimed that it met this standard by having reasonable policies in place in relation to foreseeable risks in its retail stores, and by complying with those policies at all material times.
The court began by setting out the law on occupiers’ liability under the OLA, which is set out in s. 3. It provides:
“3 (1) 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, and the person’s property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.
(2) The duty of care referred to in subsection (1) applies in relation to the
(a) condition of the premises,
(b) activities on the premises, or
(c) conduct of third parties on the premises.”
The court explained that, while, s. 3(2) of the OLA extends the occupier’s duty of care to the “conduct of third parties on the premises”, the provision does not render the occupier vicariously liable for the conduct of third parties. Liability arises only if the plaintiff proves that the occupier is at fault in failing to take the reasonable care required in the circumstances in relation to the conduct of a third party. The court then stated:
“In my view, [the drug store] took reasonable steps to ensure the reasonable safety of its stores. [The drug store] was not under a duty to guard against the sudden, random, and apparently unprecedented act of violence by [the assailant]. There was no foreseeable risk that [the drug store] customers might be the victim of unprovoked physical assaults by other [drug store] customers.”
The court also rejected the customer’s claim that the drug store failed in its duty to warn. It found that there was no evidence that the assailant had previously been in the drug store on the day of the assault and there was no foreseeable risk of physical harm to the customer.
Finally, the court rejected the customer’s claim that the drug store failed to detain the assailant after the assault, stating:
“There is a […] reason why, as a matter of policy, a duty to detain or investigate should not be imposed on [the drug store] in these circumstances. The effect of such a duty would be to require [the drug store] staff to risk their personal safety by attempting to detain a violent individual for the sole purpose of protecting the [customer]’s economic interests. It is inconceivable that the law might recognize a duty of care that subordinates […] personal safety to the promotion of the [customer]’s economic interests.”
As a result, the court rejected the customer’s claim in its entirety.
Being the victim of a physical or sexual assault is a traumatic and devastating experience for anyone, and this is magnified in situations where the victim suffers lasting or permanent physical or psychological damage. We understand that seeking help in such situations is in and of itself a difficult step, and our skilled and caring personal injury lawyers will work with you each step of the way to ensure that you are protected, well-informed and that you obtain the maximum compensation to which you are entitled.
When you meet with a personal injury lawyer at Campbell Litigation with respect to injuries suffered in an assault or sexual assault, we will begin by reviewing the relevant details with you and work to secure all available evidence. It is important to do this as early as possible, in order to preserve physical evidence and obtain witness statements while memories are still fresh.
Please contact us today to arrange a no-obligation consultation with our caring and experienced personal injury lawyers. To reach a member of our firm, you can call us at 519-886-1204 or contact us online. We will work to maximize your compensation while shielding you from unnecessary additional stress following a traumatic event. We offer prospective personal injury clients a free initial consultation.