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Slip and Fall Claim Dismissed – No Evidence of the Cause of the Fall

In order to succeed in a slip and fall claim against an owner or occupier of private property, an injured claimant must provide evidence of causation which is a connection between the wrongdoing of the occupier and the injury.

An owner or occupier of private property owes the public a duty of care to take reasonable care in the circumstances to make the premises safe.  In slip and fall cases, causation is established if it is proven that there was a hazard which the occupier should have safeguarded against (breach of a duty of care) and that the breach of the duty of care was the cause of the injury. If an injured claimant cannot establish on a balance of probabilities that the occupier’s breach of the duty of care or negligence caused the injury, his/her action against the occupier must fail. Merely showing that an injury occurred on an occupier’s property will not be sufficient to establish liability. 

The injured claimant has the burden to prove causation. There is also an evidentiary burden on the occupier. Specifically, it is open for the occupier to provide evidence that reasonable care was taken by them to safeguard the injured claimant who entered their property. In this context, an occupier can avoid liability or fault by showing that it had a reasonable system in place to safeguard against the hazard complained of.

In slip and fall claims which involve slippery surfaces (such as a wet floor), an occupier can avoid responsibility for an accident if it can show it had a schedule of inspection of the area where the accident took place and that this schedule was followed on the day in question. An example of a schedule of inspection by an occupier is often seen in restaurant washroom where there is a “sweep log” setting out when the washroom was inspected and cleaned. If the court finds that the schedule was reasonable (such as where there is a scheduled check of the washroom on an hourly basis) which was followed on the day in question and that an accident occurred in between the scheduled checks, then there will be no liability on behalf of the occupier even if a serious injury results from a hazardous condition in the washroom.

An example of a slip and fall claim where an injured claimant failed to prove causation and the occupier was successful in proving they had a reasonable inspection system in place is found in Hanes v. Loblaws 2017 BCSC 102.

In this case, the injured claimant suffered injuries when she slipped and fell in a Loblaws store. The injured claimant alleged that she fell due to water on the floor, but she testified that she did not see water on the floor before or after the fall. She assumed, however, that the floor was wet because “when she took off her jacket, the back of it was wet”. Her allegation of a wet floor was uncorroborated by witnesses. In fact, there was a video of the fall which showed a number of customers and employees walking back and forth across the area where she fell before and after the incident which showed that none of them had noticed anything wrong with the surface and no one appeared to have lost traction. The area was further inspected which did not reveal any moisture on the floor. The trial judge also found that Loblaws had a reasonable system in place to keep the floor clean and dry and that this was followed on the day of the accident.

The claim was dismissed because the injured claimant failed to establish causation and because Loblaws succeeded in proving it had a reasonable system of inspection in place that was followed at the material time.

To read more about slip and fall claims, please see previous posts on this issue in our Personal Injury News blog.

Tags: occupier liability, Slip and Fall, Unusual Danger in Slip and Fall

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"Jacqueline A. Small is a personal injury lawyer with over 15 years of experience and a partner with Holness Law Group."

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