Précis: A crew member was injured on an automatic gangway and the terminal was found liable for not properly warning users of the dangers inherent in such an automatic gangway.The plaintiff, however, failed to mitigate damages.
Facts: The plaintiff, a ship’s cook, fell from a gangway while boarding a vessel at a terminal in the Port of Prince Rupert and fractured his right femur. The gangway was owned and operated by the terminal. It was an unmanned automatic lifting gangway that moved up and down and side to side as the position of the ship shifted. A horn would sound before movement of the gangway was initiated and posted signage warned that the gangway should be cleared immediately when the horn sounded. The plaintiff was thrown from the gangway onto the deck of the ship when it raised automatically. The plaintiff had heard the horn sound but did not understand its purpose. He had not seen the posted signs and would not have understood them in any event as he had a very limited knowledge of the English language. The plaintiff commenced these proceedings against the owner of the vessel and against the terminal. The defendants each alleged that the other was responsible and that the plaintiff was contributorily negligent. Damages were agreed except for past and future wage loss and it was alleged the plaintiff failed to mitigate.
Decision: The terminal is 100% liable for non-pecuniary damages which are reduced by 15% for failure to mitigate.
Held: The terminal owed a duty to persons using the gangway to take reasonable care that the gangway was safe from an unusual danger of which the terminal was aware. An unusual danger is one that is not usually found in the place concerned and depends on the class of persons involved. A danger that is usual for one class of persons may be unusual for another class. Prior safe use is a factor to be taken into account in assessing whether something constitutes an unusual danger and whether reasonable care was taken but is not determinative. Where an occupier knows of an unusual danger it must warn users of the danger but a warning is only adequate if it provides sufficient detail about the danger such that the users understand the full danger and how to act to avoid it. Here the gangway posed an unusual danger even though it had been used for 24 years without a mishap. Adequate steps were not taken by the terminal to notify users of the danger. The signs were inadequate and confusing especially for persons who could not read and understand English, a foreseeable issue at a terminal. The terminal could easily have taken other measures to warn users. The failure to adequately warn the plaintiff of the danger was the cause of the plaintiff’s fall and injuries and the terminal is liable.
The ship owner also owed a duty to the plaintiff and other crew members to take reasonable care for their safety. If the ship owner knows of a dangerous condition it should ensure the condition is addressed and made safe. In this case, the ship owner was not aware of the danger posed by the automatic gangway and is therefore not liable.
The plaintiff was not contributorily negligent. He was not aware of the risk and could not have been reasonably aware of the danger posed by the gangway. In the circumstances, he took reasonable precautions for his own safety.
The plaintiff is entitled to non-pecuniary damages in the agreed amount of $95,000. The plaintiff also claimed $100,000 for past wage loss during the four years between the accident and trial and $300,000 for loss of future earning capacity. However, the plaintiff elected to remain in Canada following the accident but he lacked motivation to learn English and was not competitively employable, regardless of the injury. It is extremely unlikely the plaintiff could obtain employment in Canada even if the injury had not occurred. In these circumstances, no award is made for past wage loss or loss of future earning capacity.
A plaintiff has an obligation to take all reasonable measures to reduce his damages, including undergoing surgery to alleviate or cure injuries. The defendant has the burden of showing the plaintiff has failed to mitigate his damages, including to prove that the plaintiff acted unreasonably in avoiding the recommended treatment and the extent to which the plaintiff’s damages would have been reduced if he had acted reasonably. Here, the plaintiff has unreasonably refused recommended surgery and physiotherapy which would have reduced his pain and discomfort and increased mobility and function. Accordingly, damages are reduced by 15% for failure to mitigate.