Occupiers liability lawsuit arising from crab shelling mishap could reach Supreme Court of Canada

The Supreme Court of Canada will announce Thursday whether it will hear an appeal from a British Columbia dentist who sued his neighbours – along with the Vancouver Fraser Port Authority and Transport Canada – after slicing his wrist while shelling crabs on a dock.

Dr. Lyle Agar injured his wrist March 31, 2008 while cleaning crabs. He filed a statutory claim under the B.C. Occupiers Liability Act.

Court records indicate that Dr. Agar was using a homemade crab shelling device made by his neighbour, Ulrich Weber. The device was affixed to property owned by Ulrich Weber and his wife, Paula Weber. Dr. Agar used the device at the invitation of Ulrich Weber. While applying force to a shell, Dr. Agar lost balance, lurched forward and was cut across his entire right wrist.

The trial judge ruled against the Webers on the grounds that the crab shelling device posed an “unusual danger.” The lower court ruled that Ulrich Weber “had a duty to warn Dr. Agar about the concealed sharp outboard edge.”

That ruling was overturned on appeal, in a decision released July 22, 2014.

“The standard of care under the [B.C. Occupiers Liability Act] and at common law for negligence is the same: it is to protect others from an objectively unreasonable risk of harm,” Madam Justice Daphne Smith wrote on behalf of herself and the other two judges hearing the appeal. “Whether a risk is reasonable or unreasonable is a question of fact.”

The court of appeal found that the shelling device “did not pose an objectively unreasonable risk of harm.”

In September, 2014, Dr. Agar applied for leave to appeal to the Supreme Court of Canada. The highest court announced Nov. 23 it will release its decision, on Dr. Agar’s leave application, Nov. 26.

Justice Smith wrote that “the trial judge’s reliance on the language of the common law test for occupiers liability, in particular his finding of an ‘unusual danger’, may have caused him to limit his analysis of whether the device posed an objectively unreasonable risk of harm.”

In appealing the original verdict, the defendants contended that the trial judge “erred in assessing the liability of the defendants as occupiers based on the common law test of ‘unusual danger’ rather than on the statutory test” under Section 3 of the OLA.

A “critical finding” of the trial judge was that the outboard edge of the crab shelling device “was sharp because of its bevelled underside,” Justice Smith wrote. “That finding came from his personal examination of the device.”

But it was “not clear” that the trial judge “properly considered the test for reasonableness, common to both causes of action,” she added.

The other two judges hearing the Webers’ appeal – Madam Justice Risa Levine and Madam Justice Nicole Garson – concurred.

“An application of the reasonableness test, in my view, would require an analysis as to the degree of sharpness of the outboard edge; the nature of risk the device might pose in its typical use; whether anyone else had previously been injured using the device; and whether Mr. Weber could have reasonably foreseen the manner in which Dr. Agar injured himself, especially given that he never intended the device to be sharp, had tested it for sharpness, and everyone agreed that none of the methods for cleaning crabs required a sharp edge,” Justice Smith wrote.

Citing case history, the appeal court noted that “whether the device amounted to an unreasonable risk of harm, the judge must have assessed whether there was a recognizable risk of injury, the gravity of the risk, the ease or difficulty with which the risk could be avoided, and the burden or cost of eliminating the risk.”

The lower court’s finding that the “outboard edge created an objectively unreasonable risk of harm for Dr. Agar in these circumstances cannot be sustained,” the B.C. appeal court concluded.