Poirier v. Dominion Stores Ltd., (1979) 27 N.B.R.(2d) 287 (TD)

• Judge: Stratton, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: October 05, 1979
• Jurisdiction: New Brunswick
• Citations: (1979), 27 N.B.R.(2d) 287 (TD)

Poirier v. Dominion Stores Ltd. (1979), 27 N.B.R.(2d) 287 (TD);

    27 R.N.-B.(2e) 287; 60 A.P.R. 287

MLB headnote and full text

Sommaire et texte intégral

Poirier v. Dominion Stores Limited

Indexed As: Poirier v. Dominion Stores Ltd.

Répertorié: Poirier v. Dominion Stores Ltd.

New Brunswick Court of Queen's Bench

Trial Division

Stratton, J.

October 5, 1979.

Summary:

Résumé:

This case arose out of an action in negligence by a customer of a grocery store for damages for personal injuries against the store. The customer slipped and fell on an icy entrance ramp to the store.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the action and held that the store was wholly at fault. The Trial Division held that the icy ramp constituted an unusual danger, which the store had a duty to protect its customers from.

Compare Hoggan v. Newfoundland Liquor Corporation (1979), 22 Nfld. & P.E.I.R. 297; 58 A.P.R. 297, where the Newfoundland Supreme Court, Trial Division, held that an icy sidewalk did not constitute an unusual danger.

Damage Awards - Topic 72

Personal injuries and death - Body injuries - Back - Coccyx - A 52 year old miner slipped on ice and fell on his coccyx; displacing it - He also hurt one of his testicles with resulting pain and swelling - Unsuccessful reduction of coccyx attempted - Residual pain in coccyx for considerable time with eventual complete recovery - The New Brunswick Court of Queen's Bench, Trial Division, awarded $5,000 general damages for personal injuries, not including loss of wages - See paragraphs 15 to 22.

Evidence - Topic 2401

Presumptions - Inference from failure to call available evidence - The customer of a store brought an action against the store for damages for personal injuries after he slipped on the ice at the entrance to the store - The store failed to call the manager of the store or any other witness respecting the accident or the frequency or lack of any other complaints about the entrance - The New Brunswick Court of Queen's Bench, Trial Division, drew an inference adverse to the store from the failure to call such evidence - See paragraph 8.

Torts - Topic 3701

Occupier's liability for dangerous premises - Invitees - What constitutes - The New Brunswick Court of Queen's Bench, Trial Division, held that the customer of a store was an invitee of the store - See paragraph 9.

Torts - Topic 3705

Occupier's liability for dangerous premises - Invitees - Liability of retail business - Standard of care - The New Brunswick Court of Queen's Bench, Trial Division, defined the standard of care owed to customers by a retail business and set out the test of determining whether the duty has been met - See paragraphs 9 to 11.

Torts - Topic 3714

Occupier's liability for dangerous premises - Invitees - Unusual danger - What constitutes - The New Brunswick Court of Queen's Bench, Trial Division, held that an icy entrance ramp to a grocery store constituted an unusual danger - See paragraphs 11 to 13.

Cases Noticed:

Levesque v. Comeau, [1970] S.C.R. 1010, 5 N.B.R.(2d) 15, appld. [para. 8].

Bosse v. Roy (1975), 11 N.B.R.(2d) 94; 7 A.P.R. 94, appld. [para. 8].

Glencross and Hachey v. Brimsacle (1977), 19 N.B.R.(2d) 129; 30 A.P.R. 129, appld. [para. 8].

Indermaur v. Dames (1866), L.R. 1 C.P. 274, appld. [para. 8].

Smith v. Provincial Motors (1962), 32 D.L.R.(2d) 405, appld. [para. 11].

St. Pierre v. Harrison (1975), 13 N.B.R.(2d) 531; 13 A.P.R. 531, appld. [para. 11].

Rafuse v. T. Eaton Co. (1958), 11 D.L.R.(2d) 773, appld. [para. 12].

Fiddes v. Rayner Construction (1964), 45 D.L.R.(2d) 367, appld. [para. 12].

Campbell v. Royal Bank of Canada, [1964] S.C.R. 85, appld. [para. 12].

MacNeil v. Sobeys Stores Ltd. (1961), 29 D.L.R.(2d) 761, appld. [para. 12].

Levy v. Wellington Square Ltd., et al. (1964), 47 D.L.R.(2d) 567, appld. [para. 13].

Demers v. Lehndorff Property Management Ltd. (1976), 15 N.B.R.(2d) 68; 18 A.P.R. 68, appld. [para. 13].

Lingley v. Dominion Stores Limited (1978), 23 N.B.R.(2d) 546; 44 A.P.R. 546, appld. [para. 13].

Cook v. Day (1979), 26 N.B.R.(2d) 129; 55 A.P.R. 129, appld. [para. 13].

Authors and Works Noticed:

Flemming, The Law of Torts (5th Ed), p. 448 [para. 10].

Harris, Some Trends in the Law of Occupiers Liability (1963), 41 Can. Bar Rev. 401, [para. 12].

Linden, A Century of Tort Law in Canada - Unusual Dangers (1967), 45 Can. Bar Rev. 831, at 836 et seq. [para. 12].

Counsel:

John D. Hazen, for the plaintiff;

M. Barry Roderick, for the defendant.

This case was heard at Bathurst, N.B., before STRATTON, J., of the New Brunswick Court of Queen's Bench, Trial Division, who delivered the following judgment on October 5, 1979;