If you suffer an injury as a result of a trip and fall, whether in a public place, or at a private residence, you may have a claim under the Ontario Occupier’s Liability Act for your losses. Under the Occupier’s Liability Act, an “occupier” is a person in physical possession of the premises, or a person who has responsibility for and control over the condition of the premises or the activities there carried on, or finally, control over persons allowed to enter the premises. Pursuant to the Act, an occupier of premises owes a duty to take such care to see that the premises are reasonably safe.
Determining whether there has been a breach of this duty is not always an easy task and is fact-specific to each situation. These cases are often dependent on expert and scientific evidence, which demonstrate the unusual dangers of the premises or departure from expected norms of maintenance. For instance, a sudden change in the height of a public sidewalk or the presence of a loose object on the street could be enough to cause someone to trip, fall and sustain injuries. Also, it is common in these cases for the defendant to argue that the injured plaintiff contributed to their losses (“contributory negligence”). It is important to consult with a trip and fall lawyer as soon as possible to assess the strength of your case.
The recent Ontario Superior Court of Justice decision in Grayling v. The Corporation of Haldimand County, 2014 ONSC 198 (“Grayling”), demonstrates how Courts in Ontario are assessing liability in trip and fall cases. Ms. Grayling was injured as a result of a trip and fall injury that occurred on a city sidewalk. Ms. Grayling states that she stubbed her toe on the sidewalk due to the difference in height between two slabs of the sidewalk. She then took 4-5 steps forward (tripped) and fell onto the grass beside the sidewalk. As a result, she broke her right upper arm.
Justice J. Lofchik states that it is for the plaintiff to demonstrate that a condition of non-repair existed which in turn caused the injury. Once the plaintiff is able to establish there is a condition of non-repair, the onus shifts to the occupier (in this case, the Municipality) to establish that the condition of non-repair existed despite its attempt to exercise proper care and diligence in the inspection and maintenance of the sidewalk. The decision states that an elevation difference between sidewalk slabs is not necessarily a “non-repair”, as sidewalk installation is not an exact science and pedestrians should not expect a perfectly flat surface. However, previous case law had indicated that the judicial “rule of thumb” as to what height differential establishes a non-repair is between ¾ of an inch to 1 inch. Accordingly, Justice Lofchik determined that a trip hazard existed. The trip ledge that caused her fall was concluded to be ¾ of an inch to 1 ¼ inches and there was a state of disrepair of the sidewalk.
With respect to liability, Justice Lofchik found that both sides bore responsibility for the accident. He felt that Mrs. Grayling did not pay enough attention to where she was walking. In his opinion, each party was 50% liable for the accident, meaning each party shared equal responsibility. The total amount awarded was $215, 530. Mrs. Grayling received $107, 765, after the 50% reduction for what is known as “contributory negligence”. If you have been involved in a trip and fall, consult with a personal injury lawyer to understand your rights by booking a free consultation or calling 1-855-446-7765 for immediate assistance. For more information, visit our slip and fall section.
