Ever wonder why some people have a ‘slip and fall’ and get a big payout from the business owner where the fall happened, but some people, and sometimes those hurt far worse, don’t get anything?
Most often these situations are governed by the Occupiers Liability Act, although the common law rule of negligence may also apply. Under the Act, the ‘occupier’, defined as the person who essentially has control over the premises (whether because they own it, rent it or for any other reason have physical control over the premises), has a duty to ensure that any person who legally enters the premises will be reasonably safe. The key word there is ‘reasonably’. Obviously no owner/occupier of a property can prevent every potential accident from happening, so the law draws a line between injuries that are as a result of unavoidable, unfortunate accident and which injuries should have been prevented by some action by the owner/occupier.
If an injury is the result of an accident, the accident victim cannot recover financial damages from the owner/occupier because in the eyes of the law the injury was not the owner/occupier’s fault. There was nothing they could have reasonably been expected to do to prevent the accident from having happened. However, if an objective review of the situation reveals that the injury could have been avoided with a bit of foresight and preventative measures on the owner/operator’s part, then that owner/operator is deemed responsible for the injury and will be liable to put the injured person back in the position they would have been (as best money can) if not for the injury. This is a bit of a generalization and does not apply to all situations, for example if the injured person is an employee of the owner/operator their claim is likely covered by Workers Compensation.
So what counts as ‘reasonable steps’? The leading case on this issue is D’Arcy v. Clayton Professional Centre Ltd. In this case two workers slipped, fell and were seriously injured on a very icy parking lot on their way into work in the wee hours of a March morning. The court accepted that the parking lot was essentially a sheet of black ice, however they went on to find that the owners had done all they could reasonably be expected to do on a stormy winter morning to keep the lot safe (they had hired a contractor to plow/sand/snow the lot and the contractor had regularly done so) and as a result the owners of the lot were not responsible for the injuries.
Another important point under the Act is that the occupier is responsible for not only the condition of the premises, but also for any activities being conducted on the premises, including those of third parties. For example, if you host an event and a guest or employee does something that results in someone being injured (maybe moving an extension cord to a high traffic spot), you as owner/occupier could very likely be responsible.
To limit your own liability exposure, make a point of being aware of potential danger spots at your premises (home, business, boat, RV and more). Take note of the condition and lighting of stairs. Look for items overhead that might fall on or snag a passerby. Regularly monitor any walkways with an eye for tripping hazards and if you notice a potential problem mark it right away and take steps as soon as possible to remedy the problem. Perhaps most importantly realize that no one is perfect and be prepared with an appropriate insurance policy.
If you questions related to this topic we'd be happy to help. You can call us at (902) 826-3070 to set up a meeting or contact us online. You can also schedule a no commitment Issue Review Consult for $100+HST where you have the opportunity to explain your situation to a lawyer and get basic advice before deciding whether or not you'd like to retain us.
By: Dianna M. Rievaj, MBA, LLB - Managing Lawyer
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