Slip and Fall Injuries and the Importance of Objective Evidence

To succeed in an occupier’s liability claim under the Ontario Occupier’s Liability Act, the plaintiff must be able to demonstrate evidence of some act or failure to act on the part of the occupier that caused the plaintiff’s injury. An occupier of premises owes a duty to take such care to see that its premises are reasonably safe. The standard of care required of an occupier to remove danger from the premises is one of reasonableness, and not perfection. For instance, liability on the part of the occupier can arise through failure to:

• Have in place a system of inspection at the premises;
• Regularly inspect and/or maintain the premises for danger;
• Warn of a hazardous situation or correct a known danger

The importance of gathering objective evidence in these cases cannot be stressed enough. Success in a slip and fall case will often depend upon accurate identification of the reason for the fall either through eye witness testimony, photographs or other documentary evidence. Preservation of this information is particularly vital in those cases involving a transient condition such as a spilled liquid, item of produce or presence of ice. Other defects on the premises which are of a more permanent nature such as an uneven surface or other deficiency in construction may be shown by subsequent engineering inspection. The location of your accident will have a significant impact on the steps you must take. That is why it is important to contact a slip and fall lawyer as soon as possible after a slip and fall accident.

In the recent Ontario Superior Court of Justice decision, Nandlal v. Toronto Transit Commission, 2014 ONSC 4760 (“Nandlal”), Justice Perell relied on the “reasonableness” test in granting summary judgment to the defendant, the Toronto Transit Commission (“TTC”) against the plaintiff’s slip and fall claim brought under the Occupiers’ Liability Act, for no genuine issue regarding a trial. This case demonstrates that importance of objective evidence in finding an occupier liable for failing to maintain the premises.

In Nandlal, the plaintiff slipped and fell down the stairs at a TTC subway station. She claimed that she slipped and fell as a result of debris left on the stairs, and that the TTC had failed to carry out its duty of care to keep the stairs reasonably safe. However, Justice Perell found that there was no objective evidence to confirm that there was debris on the stairs at the time of the incident. It was found that the TTC had a reasonable system of maintenance in place which required employees to monitor the transit station for hazards. The Court found that even if there had been debris on the stairs, or if the stairs had been slippery, the TTC was not, and could not, be expected to immediately and constantly clean up after individuals who litter on the premises. Thus, there was enough evidence here for the Court to conclude that there was no genuine issue for trial, meaning the TTC took reasonable steps to ensure its premises were safe in these circumstances.

If you are involved in a slip and fall accident, here are some steps you should immediately take to strengthen your case include:
1. Take pictures of the location;
2. Speak to any witnesses and ask for their contact information;
3. Seek medical attention as soon as possible;
4. Document the events surrounding the accident as soon as you can; and
5. Contact a slip and fall lawyer.