Slip and Falls - Causation and Duty of Care
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:
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 Occupiers 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),  1 S.C.R. 201 in which the court said the following:
S. 3 of the Occupiers Liability Act outlines the nature of an occupiers 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 persons 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
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
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:
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:
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 defendants 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.
Rose Keith, JD
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