Watch out! 4 Things that can Let the Occupier off the Hook in Slip and Fall
By Pace Law | September 4, 2019
Ontario slip and fall accidents have a tremendous impact on public health – much more so than is commonly understood. In fact, the Canadian Institute for Health Information reports that falls are the most common cause of injury in Canada. Reportedly, over 1700 emergency department visits every day were as a result of falling.
Falls can cause serious, long term injuries, resulting in loss of income and enjoyment of life. Therefore, it is essential that a legal action, seeking compensation, be pursued correctly.
What are common causes of slip and fall?
Slip and fall accidents can happen due to any number of reasons. Debris and construction material strewn on the ground, slippery floors, and falls from heights are just some of the conditions and circumstances associated with slip/trip and fall accidents. Falls from a height, due to an improperly installed window or railing, can be especially devastating. As Ontario slip and fall lawyers, we understand that children and the elderly are most severely impacted by accidents involving falls.
Pursuing your claim for compensation as a result of a slip and fall accident can be challenging. An absence of witnesses and evidence, a failure to document the scene properly, and delays in making claims are reasons why occupiers who are otherwise liable can be let off the hook. In this article, we will examine four cases to illustrate how legitimate slip and fall claims were dismissed, and what lessons can be learned.
Insufficient evidence about what caused the fall
The case of Hamilton v. Ontario Corporation #2000533 shows that general, sweeping claims are insufficient to cross the threshold laid down by the law. Ontario’s Occupiers’ Liability Act places a ‘reasonable’ duty on occupiers to keep property safe. Ms. Hamilton, who slipped in her apartment building, was unable to describe what she slipped on, and how maintenance had failed to keep the building “reasonably safe”. Evidence of rainfall at Toronto Pearson Airport was insufficient, especially in light of the production of no evidence about wet floors or leaks in the building. The slip and fall claim was dismissed.
Point of note: A clear record of the accident scene is invaluable. If you are documenting a slip and fall accident, take photographs of the specific obstruction or conditions that caused the fall, and more comprehensive photographs of the entire accident scene. In the absence of specific details, the court may not be satisfied that general descriptions of the area/scene meet the evidentiary threshold to support your claim.
Delayed evidence collection stultifies a claim
Our next case of Krause v. Pittman was decided in Alberta. Nonetheless, the court’s decision on merits presents an interesting analysis. Cheryl Lynn Krause slipped and fell on icy ground on Ms. Pittman’s property. As a result, Ms. Krause suffered a serious wrist injury, which required two operations to heal. The court dismissed her claim — noting that the conditions were no more treacherous than those at the defendant’s neighbours. The court noted that the pictures Ms. Krause produced as evidence had been taken some six months after the accident. In light of that consideration, a relative comparison of the defendant’s property with those of her neighbours’ was a major factor leading the court to finding that the defendant had met the ‘reasonable’ standard of care required under the Occupiers’ Liability Act.
Point of note: Evidence about the accident scene must be collected immediately or as soon as possible. In pursuing a legal claim, it is preferable to document the accident scene conditions as thoroughly as possible, thereby gathering the objective evidence of a failure to keep the property safe.
Defendant’s own evidence admitting fault disregarded
The case of Flowers v. Allterrain Contracting Inc. is another of note. Decided by the Supreme Court of Nova Scotia, it concerns snow clearing and the defendant’s own record of snow clearing activities. The plaintiff slipped and fell in front of a Walmart store located in the Halifax Shopping Centre. The assistant manager of the store filled out a brief computer form stating ‘walk/lots’ ‘not salted’ and ‘not sanded.’ The plaintiff sought to use this assessment in her favour. However, the court noted that there was no other evidence corroborating this evidence (cameras or photographs). In fact, the assistant manager said before the court that he was unable to recall the conditions at the time of the incident. The court relied instead on the detailed records of the company that was contracted the task of clearing snow from the sidewalk and parking lots.
Point of note: Accident victims must collect their own evidence corroborating their version of events. Even if a favourable record is made by the occupier, you should maintain your own accurate record of events. Moreover, eyewitness testimony is invaluable in establishing a strong case.
Losing out due to limitation
The limitation period for making a personal injury claim in Ontario is two years. However a notice of claim must be sent to the occupier, to keep a claim under the Occupiers’ Liability Act alive. The expiration of the limitation period prior to the filing of a claim is a common reason why liable property owners are let off the hook.
Passage of Bill 118, Occupiers’ Liability Amendment Act, 2019, will make visiting a Toronto slip and fall lawyer immediately even more important. It proposes that personal injury claims under the Occupiers’ Liability Act must give written notice of claim and injury within 10 days. This limitation can be waived in exceptional circumstances. Nonetheless, prudence dictates a prompt visit to your lawyers.
From the cases cited and others, a common theme is that occupiers most often escape liability from a slip and fall action due to the victims’ lack of sufficient evidence. That is why any Toronto slip and fall lawyer will tell you: take photographs immediately of the scene, obtain witness accounts, and document the accident in detail. The more evidence you have, the less likely your legitimate claim will be dismissed.