Slip and Falls - Causation and Duty of Care
"Slip and Fall Injury Claims." by: Rose Keith, JD, Vancouver BC personal injury lawyer - republished 2014.10.07 BCpersonalinjury.org
As a personal injury lawyer I am often consulted with respect to injuries that have occurred as a result of a slip and fall. The basic principles in this type of case are no different than in any other personal injury case, specifically, it falls to the plaintiff to establish that they suffered an injury and that the injury was a result of the negligence of the named defendants. The difference is in how negligence is assessed. Just because someone has slipped or fallen on your premises does not mean that you are automatically liable for the resulting injury. As in any negligence claim to be successful a plaintiff must demonstrate that:
a) The defendant owed him a duty of care;
b) The defendant’s behavior breached the standard of care;
c) The plaintiff sustained damage; and
d) The damage was caused, in fact and in law, by the defendant’s breach.
Generally, the primary issues in a slip and fall case are whether the defendant breached the standard of care and whether that breach caused the damage suffered by the plaintiff. In slip and fall cases the claim is generally against an “occupier” under the Occupier’s Liability Act. The standard of care for an occupier was described by the Supreme Court of Canada in the case of Ryan v. Victoria (City), [1999] 1 S.C.R. 201 in which the court said the following:
“ Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.”
S. 3 of the Occupiers Liability Act outlines the nature of an occupier’s duty of care in relation to persons who are using their premises. That section provides as follows:
3 (1) An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person’s property, on the premises and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.
3 (2) The duty of care referred to in subsection (1) applies in relation to the
(a) condition of the premises,
(b) activities on the premises; or
(c) conduct of third parties on the premises.
3 (3) Despite subsection (1), an occupier has no duty of care to a person in respect of risks willingly assumed by that person other than a duty not to
(a) create a danger with intent to do harm to the person or damage to the person’s property, or
(b ) act with reckless disregard to the safety of the person or the integrity of the person’s property.
The standard expected of an occupier is one of reasonableness, not perfection. As stated in Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33:
... the duty owed by an occupier of premises is to take reasonable care to see that persons using the premises will be reasonably safe. The Acts do not impose a duty to take reasonable care to insure that persons using the premises will be “absolutely safe”
From the cases that have considered liability of an occupier, in addition to the requirement of proving that the occupier was in breach of his duty of care, a number of principles can be discerned. Those are as follows:
- There is no presumption of negligence just because of the fact of an injury. It falls to the plaintiff to establish that some act or failure to act on the part of the occupier resulted in the injury;
- The duty of care established under the Occupier’s Liability Act does not require the occupier to remove every possibility of danger - the test is one of reasonableness, not perfection;
- The plaintiff must prove the connection between his fall and the occupier’s breach of the duty of care;
- The care that is required of the occupier varies according to the nature and use of the premises;
- The occupier does not always have to show that they have a policy in place to deal with maintenance of the premises rather the nature of the premises will determine whether or not a maintenance scheme is required;
- An occupier is required to take reasonable steps to remedy any unsafe condition that would be seen to be a relevant risk associated with the use of the premises.
All of these principles make liability in a slip and fall case difficult to prove. The burden on the plaintiff of establishing that there is something that the occupier did or failed to do that caused the fall can be difficult and results in a two-fold evidentiary burden on the plaintiff. They have to establish first what hazard or condition caused the fall and that second that it was the defendant’s breach of its standard of care that caused the hazard or condition to exist. Unless the plaintiff can state what it was that caused them to fall, they will not be successful. There has to be evidence before the court beyond speculation of what has caused the plaintiff to fall. Unless the plaintiff establishes what hazard caused the slip the court will not go on to consider whether it has been established that the presence of the hazard was caused by the defendants breach of its duty of care. If a breach of the duty of care resulting in the hazard is established, the defendant can then refute this with evidence that a reasonable standard of maintenance was in place.
From the above discussion of the principles that apply in determining liability for injuries suffered in a slip and fall it will be evident that the cases are difficult and are often lost at trial on the basis either that the plaintiff failed to establish what caused them to fall or that the defendant had a reasonable maintenance policy in place. Our courts do not require perfection from occupiers, rather they only require reasonable steps to be taken to ensure that users of premises will be reasonably safe.
If you believe you have been harmed as a result of a slip and fall - you should retain a skilled Vancouver personal injury lawyer experienced in this type of case. Learn about Rose Keith’s expertise and experience by clicking RoseKeith.bc.ca. Call Rose for a free consultation.
Rose Keith, JD
ICBC injury disputes / Slip & Fall / Medical Malpractice / Employment Law.
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Vancouver, BC V6G 3J6
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Above article © 2014 Rose Keith - republished with permission in www.bcpersonalinjury.org 2014.10.09
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