B.C. court overturns decision ordering 7-Eleven to pay $900K for pothole injury

A shopper inside a 7-Eleven convenience store, operated by Seven & i Holdings Co., at the company's headquarters in Tokyo, Japan, on Friday, Aug. 23, 2024.

British Columbia’s highest court has thrown out a lower court’s decision ordering 7-Eleven Canada to pay a woman more than $907,000 in damages after she tripped on a pothole and broke her ankle in a convenience store parking lot.

The provincial Appeal Court ordered a new trial of the damage assessment Wednesday after finding the judge who heard the case and ordered the near-million-dollar payout failed to properly address whether the woman’s mental health issues, for which she was compensated by the court, were necessarily caused by the physical injuries she sustained.

The convenience store chain was found negligent in B.C. Supreme Court last year, and was ordered to pay $907,363 to Crystal Tommy, 37, who described suffering a cascading series of physical and mental injuries after her fall outside a 7-Eleven store in Smithers in May 2018.

• Read more: 7-Eleven ordered to pay B.C. woman $907K for pothole injury

The award included $175,000 in general damages, $494,000 in future loss of income, $10,000 in past loss of income, $171,863 in future loss of housekeeping, $39,000 in past loss of housekeeping, $17,000 in future cost of care and $500 in special damages.

7-Eleven rejected settlement

In April of this year, the B.C. Supreme Court judge revealed that Tommy had offered to settle the case out of court for as little as $125,000 but 7-Eleven opted to take the case to trial.

Because the parties failed to settle out of court, Justice Emily Burke ordered 7-Eleven to pay double Tommy’s court costs in accordance with a B.C. rule that penalizes litigants refuse reasonable settlement offers, pushing the total award payout closer to the $1-million mark.

• Read more: 7-Eleven could have settled $900K injury lawsuit for a fraction of cost, B.C. judge rules

But 7-Eleven appealed the award, arguing successfully that the judge mistakenly treated Tommy’s mental health injuries as direct consequences of the store’s negligence without first assessing the connection “as a matter of fact or law,” the Appeal Court ruled.

“These errors undermine the judge’s damage assessment, and the record is insufficient for this court to perform its own,” Justice Geoffrey Gomery wrote on behalf of the three-judge Appeal Court. “With regret, I would order a new trial.”

Broken ankle, depression

Tommy testified at trial that she had stopped at the 7-Eleven to get a coffee before work. While leaving the store and walking back to her car, she tripped on a divot in the parking lot and broke her ankle in three places.

She missed several months of work due to the injury. Then in December of that year, she slipped on some stairs, injuring her back in an accident she attributed to her limp and lingering hip pain after her initial fall at 7-Eleven.

Tommy’s medical complications continued with a car crash and a pair of surgeries in the coming years, the court heard. By the end of 2022, she had stopped working and many of her social connections had fallen away, leading to emotional, mental and financial hardship.

The trial judge found that Tommy was entitled to compensation for mental distress and depression after the injury, not only as damages in their own right, but also as factors that decreased her potential future earning capacity as a worker.

The Appeal Court found fault with that decision, saying the judge concluded that Tommy suffered “a legally compensable mental injury” without establishing whether her fall at 7-Eleven caused or contributed to the mental injury, and, if so, to what degree.

Error undermined damage assessment

According to Gomery, the failure to make the connection undermined the whole of the trial judge’s award assessment, which can only be rectified by a new hearing on damages.

“The trial judge erred in law in failing to engage in the assessment of causation required by law,” Gomery wrote.

“Absent a finding that the ankle and back injury materially contributed to the compensable mental health issues, it was not open to the judge to incorporate the mental health issues into her assessment of damages payable by the appellant.”

At trial, 7-Eleven denied all liability for Tommy’s injuries, arguing parking lot was reasonably safe with only a very small depression in the pavement where her injury occurred.

A 7-Eleven asset protection supervisor testified that its B.C. store employees were required to take an online safety course and complete a questionnaire about workplace hazards when they were hired.

Gomery granted 7-Eleven’s appeal, setting aside the B.C. Supreme Court’s order and replacing it with an order declaring 7-Eleven “liable for damages to be assessed.”