THUNDER BAY -- A Superior Court justice has granted a motion to dismiss an action filed against a Thunder Bay couple by a man who was hurt while working on their house.
The plaintiff was seeking general damages of $250,000, plus special damages, as a result of suffering multiple fractures in a fall from a roof in September of 2013.
He based his claim on negligence, breach of duty and breach of the Occupiers Liability Act.
According to a transcript of the judge's ruling, the defendants' affidavit indicated there was no written contract, but the plaintiff had agreed to complete renovations that had been started by someone else, and had given assurances he was an experienced contractor with his own tools, equipment and workmen.
The plaintiff's affidavit stated that the defendants had agreed to provide safety equipment but did not provide either a safety harness or scaffolding for work on the roof.
At the time of the accident, he said, he was nailing tarpaper when he slipped, falling about 37 feet to the ground onto bricks and debris.
In the ruling, the judge noted that no evidence was provided to show the fall was caused by any defect or lack of repair affecting the house or any hazardous conditions associated with the house itself.
As a result, he said, the only basis for liability would be in negligence for not providing safety equipment. However, since breach of contract was not pleaded, "plaintiff's counsel acknowledged that no contractual claim could be advanced for failure on the part of the defendants to furnish the plaintiff with safety equipment."
The judge cited as a precedent a case in which a court ruled that "Where a lay customer engages a professional or tradesman, it is presumed that the tradesman knows how to do the work...If the tradesman fails to do the work properly or safely, he cannot blame his customer on the basis that the customer should have known better."
The court dismissed the suit on the basis there was no genuine issue requiring a trial because there was no evidentiary or legal basis for the plaintiff to establish liability against the defendants.
Court costs totalling $10,000 were awarded to the defendants.