



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Petersen v. Mulrooney,









2016 BCCA 27




Date: 20160115

Docket: CA42509

Between:

Andrew Petersen

Appellant

(Plaintiff)

And

Kevin Mulrooney
dba Sniperz Outdoor Paintball Adventures

Respondent

(Defendant)




Before:



The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Fenlon




On appeal from: an
order of the Supreme Court of British Columbia, dated
December 17, 2014 (
Petersen v. Mulrooney
, 2014 BCSC 2393,
New Westminster Registry No. S143346)

Oral Reasons for Judgment




Counsel for the Appellant:



J. Woods





Respondent appearing In Person:









Place and Date of Hearing:



Vancouver, British
  Columbia

January 11, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 15, 2016








Summary:

The appellant appeals the
decision dismissing his action for damages arising out of an eye injury
allegedly sustained while he was playing paintball. He sought damages against
the owner of the paintball business on the basis that he was given a defective
mask that allowed paint to pass through it and strike him in the eye. Held:
Appeal dismissed. The owner owed the appellant a duty of care. However, the
trial judges findings that the appellant failed to prove a number of elements
essential to establishing a claim in negligence were amply supported by the
evidence.

[1]

FENLON J.A.
: The appellant Andrew Petersen alleges that his right
eye was injured in July 2010 while he was playing paintball at Sniperz Outdoor
Paintball Adventures in Chilliwack  a business owned and operated by the
respondent Kevin Mulrooney.

[2]

The allegation at trial was that
Mr. Petersen was given a defective mask that allowed paint to pass through
it and strike him in the eye. After a three day trial in November 2014,
Mr. Petersens claim for damages for negligence was dismissed:
Petersen
v. Mulrooney,
2014 BCSC 2393.

Errors Alleged

[3]

Mr. Petersen submits that the trial judge made four main errors:

1.         Misapprehending the evidence and making a number
of findings of fact that are plainly wrong; since she relied on those errors to
make an unfavourable credibility assessment about Mr. Petersens evidence,
those errors are said to be material because they could have altered the
result.

2.         Accepting lay opinion evidence to the effect that
it is not possible for paint to travel through a face shield and hit a players
eye when foam is missing from the mask;

3.         Rejecting Dr. Tams opinion that the incident
caused Mr. Petersens eye injury; and

4.         Failing to find that the
paint spray caused the injury when there were no other possible explanations
for how the injury occurred.

Analysis


1.         Misapprehension
of the Evidence

[4]

I turn to the errors relating to misapprehension of the evidence. First,
Mr. Petersen submits that the trial judge incorrectly understood that he was
claiming the
entire
vision loss in the right eye was due to the paint
spray, when in reality he only claimed the incident caused his vision to become
incrementally
worse and led to his eye starting to drift (exotropia).

[5]

While the trial judge does refer at para. 23 to Mr. Petersen
claiming that his vision loss resulted from the injury, in my view she was
referring to the extent of the incremental vision loss Mr. Petersen
attributed to the incident.

[6]

Mr. Petersen candidly admitted that he had a congenital eye
condition which caused significant pre-existing poor vision in his right eye.
It is unlikely that the trial judge understood him to be claiming the entire
vision loss was due to the July 2010 incident.

[7]

The second misapprehension of the evidence Mr. Petersen points to is
the trial judges assumption that Mr. Petersen told Dr. Tam that he
had stopped to buy eye wash after leaving the paintball field when he did not
say he did so in his evidence at trial. In reality, the purchase of eye wash
was one of the assumptions Dr. Tam was asked to make by Mr. Petersens
counsel in providing her expert opinion.

[8]

Third, Mr. Petersen says the trial judge mistakenly thought
Mr. Mulrooney did not accept the type of coupon Mr. Petersen said he
used to pay for the paintball outing (at para. 36).

[9]

The second and third errors of fact alleged form but a small part of the
evidence considered by the trial judge in assessing the credibility of
Mr. Petersen. I will not repeat all of that evidence here. Two examples
are referred to at paras. 50 through 52 of the reasons for judgment:

[50]      In my view, the frailty of Mr. Petersens
evidence was made plain during his cross examination, as even he himself
realized as time went on. Toward the end of his cross examination, in a futile
attempt to emphasize or, in my view, inflate his claims as to the force of the
paint hitting his mask, he alleged that he had suffered a cut to his nose. No
one corroborated such an injury. I do not accept this account by
Mr. Petersen.

[51]      One final point of contradiction was
Mr. Petersens evidence about how he travelled to the BBQ after the
paintballing. At his examination for discovery, he stated that he drove home
there in excruciating pain, which sounded similar to his evidence in direct
about his drive from the BBQ. In cross examination, Mr. Petersen said his
son drove him to the BBQ.

[52]      In conclusion, I give
little, if any, weight to the evidence of Mr. Petersen in terms of his
description of the events on July 10, 2010. Indeed, Mr. Petersen quite
understandably says that he has no idea what happened. In my view, he only
surmises now that since he had paint on the outside of the mask, it must have
been paint that hit his eye.

[10]

When the reasons are read as a whole, it is apparent that the factual
errors identified by Mr. Petersen are relatively minor. In my view they were
not, even taken collectively, material enough to potentially alter the trial
judges assessment of Mr. Petersens credibility.

[11]

Mr. Petersen also raised under this first ground of appeal the trial
judges use of his pleadings and the late filing of his notice of civil claim
to assess the reliability of his evidence. I will address each of these issues
in turn.

[12]

In my view the trial judge did not err when she considered that a
fundamental aspect of Mr. Petersens claim  the mechanism of the injury 
changed on the first day of trial. The pleading stated the injury occurred when
a paintball passed through a ventilation hole in his mask and struck him directly
in the right eye. At trial, for the first time Mr. Petersen said he was
injured by paint spray passing through the mask and striking his eye. No
explanation was offered to account for this sudden change or to distance Mr.
Petersen from the earlier version of what happened on the paintball field.

[13]

I turn now to the trial judges mistaken inference, drawn from the
filing of the notice of civil claim almost two years after the incident, that Mr. Petersen
did not initially intend to pursue a claim (at para. 35). Mr. Petersen submits
that the trial judge made a negative finding about his credibility as a result
of that mistaken inference.

[14]

Read in context, in my view the trial judges comments are merely an
attempt to explain why Mr. Petersens evidence contained so many
inconsistencies. Just before referring to the late filing, the trial judge
said:

[34]      I would observe at the
outset that Mr. Petersen's credibility and ability to recall the events in
question were sorely tested during the course of the trial. The same can be
said for the ability of his collateral witnesses, Mr. Collins and Mr. LeMond,
to accurately recall the events of that day.

2.         Accepting
Lay Opinion Evidence

[15]

I turn now to the second ground of appeal: the alleged error in relation
to lay opinion evidence.

[16]

Mr. Mulrooney testified that it was not possible for paint to
travel through one of his rental masks and strike Mr. Petersen in the eye,
even if foam was missing. Similar evidence was given by Mr. Teodosio, an
experienced paintballer. There was evidence before the court that
Mr. Mulrooney had been involved in paintballing as a business owner and
high-level competitor for 30 years. However, neither witness was formally
qualified as an expert.

[17]

Mr. Petersen submits that the trial judge erred in relying on Mr. Mulrooneys
opinion when she said at para. 69 of her judgment:

[69]      In any event, the
uncontradicted evidence of Mr. Mulrooney and Mr. Teodosio is that
foam is not necessary from a safety point of view. It is there for comfort.
Their evidence was that a mask without any foam is still entirely safe and
designed, if properly worn, to prevent any paint from entering the eye area. Mr. Mulrooneys
evidence was that it was not possible for paint to go through a face shield and
travel to hit the eye even if there was a lack of foam.

[18]

In my opinion it is not necessary to determine whether the impugned
evidence falls outside the parameters of admissible lay opinion evidence
described in
American Creek Resources Ltd. v. Teuton Resources Corp.
, 2013
BCSC 1042, upheld by this Court in 2015 BCCA 170. That is so because the trial
judge found as a matter of fact that the mask Mr. Petersen was wearing was
not
missing any foam. At paras. 68 and 80 she said:

[68]      I do not accept Mr. Petersen's evidence
concerning the lack of foam in his mask. Again, I consider that his evidence is
largely reconstructed and intended to
ex post facto
support his claim
here. I accept that there may have been some wear on the foam in these masks
and Mr. Mulrooney confirmed that he would have rented out a mask with some
deterioration in the foam. I accept his evidence, however, that if there was
too much wear on the foam, he would have discarded the mask.



[80]      As I have stated above,
I found Mr. Petersens evidence concerning the foam entirely lacking in
credibility and I reject his evidence.

[19]

After each of these references, the trial judge went on to say that in
any event there was evidence that deterioration of the foam would not affect
the masks safety. However, the evidence of Mr. Mulrooney and Mr. Teodosio
about foam and mask safety did not affect the trial judges preliminary finding
that Mr. Petersen had failed to prove that the mask he wore that day was
missing foam.

[20]

Mr. Petersen also submits that the trial judge misconstrued the
nature of the opinion evidence. She stated that Mr. Mulrooney denied paint
spray could hit the eye through a mask, when in fact Mr. Mulrooney
acknowledged in cross-examination that it was possible. However, it is apparent
from the reasons as a whole that the issue before the court was whether the
force
of any spray that made its way through a mask could cause injury.

[21]

Further, the trial judge expressly acknowledged at para. 57 of her
reasons that paint may have splattered Mr. Petersen in the lower part of the
left side of his face if he was hit on the left side of his mask. Ultimately,
however she did not accept that a paintball striking Mr. Petersen on the left
side from a 90 degree angle could penetrate the mask and continue to travel to
the other side of his face on a straight trajectory in which his right eye
would have been blocked by his nose to end up striking the right eye with enough
force to cause an abrasion injury. Her finding on the improbability of this
mechanism of injury is distinct from the condition of the mask and its
permeability.


3.         Failure
to accept Dr. Tams opinion

[22]

I turn to the third ground of appeal. Mr. Petersen argues that the
trial judge did not properly consider Dr. Tams opinion that the injury
she observed in July 2010, two days after Mr. Petersen played paintball, was
caused during the game.

[23]

Dr. Tams opinion was based on an assumption that Mr. Petersen
was struck in the eye with a paintball about the size of a thumb. She did not
of course observe the incident. She could only accept what her patient told her
and reasonably concluded therefore that the injury was explained or caused by a
paintball hitting Mr. Petersens eye.

[24]

It is trite law that the weight to be given an experts opinion depends
in large part on whether the assumptions made by the expert to support her
opinion accord with the facts proved at trial. Mr. Petersen did not prove
at trial that a paintball hit his eye. Indeed, by the time the trial proper
began, he did not even assert that to be so. He said instead that his eye was
hit by paint spray. It is significant that there was no allegation that the
injury to the eye was chemical in nature, i.e., caused by the composition of
the paint itself. The injury was always described as due to a percussive force,
i.e., something hitting the eye with enough force to cause an injury.

[25]

In support of his argument that the trial judge erred in rejecting Dr. Tams
conclusion on causation, Mr. Petersen at para. 76 of his factum asserts:

At no time was [Dr. Tam] asked
whether or not her opinion would have changed had she been told it was paint
that struck Mr. Petersen in the eye as opposed to a complete paintball.

[26]

However, it was not up to Mr. Mulrooney to elicit from Dr. Tam
evidence that her opinion would remain the same even if paint spray rather than
a paintball had struck Mr. Petersens eye. The onus was on
Mr. Petersen to prove that his eye injury was caused by spray hitting his
eye. Dr. Tams opinion did not address that question. I see no error in
the trial judges decision to accord no weight to Dr. Tams opinion on the
causation issue in these circumstances.

[27]

Finally, Mr. Petersen argues that the trial judge erred in rejecting his
explanation for his eye injury when there was no other explanation for it. The
trial judge was required to assess the evidence and determine on a balance of
probabilities whether the elements of negligence had been made out by Mr. Petersen.
It was open to her to reject the explanation and evidence of Mr. Petersen.
That finding did not depend on her ability to explain how the injury in fact
occurred.

Summary

[28]

The trial judge found that Mr. Petersen proved he suffered an
injury to his right eye in July 2010, and that Mr. Mulrooney owed him a
duty of care. However,  the trial judge found Mr. Petersen did not prove a
number of the other elements essential to establishing a claim in negligence,
including that:

1.

His injury was
caused by paint entering his mask and hitting his right eye (at para. 78);

2.

The mask he wore
was defective (at paras. 79, 80); and

3.

Mr. Mulrooney
breached the duty of care he owed to Mr. Petersen.

[29]

In my view the trial judges findings on these issues are amply
supported by the evidence. I would therefore dismiss the appeal with costs to
the respondent.

[30]

KIRKPATRICK J.A.
: I agree.

[31]

GROBERMAN J.A.
: I agree.

[32]

KIRKPATRICK J.A.
: The appeal is dismissed.

The Honourable Madam Justice Fenlon


