Burlington Personal Injury Lawyer | Hamilton Personal Injury Lawyer | Mississauga Personal injury Lawyer Notes
If you have fallen and injured yourself on municipal property, such as a city sidewalk, the limitation to issue a claim against that city or town is two years. However, you must remember that you are required to serve the city or town written notice of your accident within 10 days. This means that you must inform the municipal clerk in writing that you have fallen and injured yourself. I would suggest that this be done by registered mail. If you miss putting the city or town on notice, a judge may extend this time for you if he or she finds there is a reasonable excuse for the want or insufficiency of the notice and that the municipality is not prejudice in its defence. A court may find that the municipality is not prejudice by the failure of you giving proper notice, if the municipality knew of the problems from its own general inspection or that conditions giving rise to the dangers still existed at the time of notice (Glazman v. Toronto).
If you do not fall on ice or snow, but rather you fell on a hazard such as trip edge (such as one sidewalk slab is higher than the other sidewalk slab and you tripped over it) you must first establish a balance of probabilities (i.e. greater than 51%), if the place where your fell was in a state of non-repair. Then you must establish a link between a state of non-repair and your injury. If you satisfy these evidentiary requirements, the municipality than must establish that it had a reasonable system in place for inspection and repair of the area in question. If the municipality can meet this burden, it will not be held liable for your injuries. Otherwise, the municipality would virtually be an insurer to every pedestrian who walked on its streets, which is at law completely inequitable. The municipality will not be held liable for failing to keep a sidewalk in a reasonable state of repair if it took reasonable steps in preventing the default from arising. The determination of whether a non-repair of a sidewalk exists and whether the disrepair caused the incident depends on the facts of each individual case.
The case of Michalak v. Oakville is a great example of a sidewalk trip edge and the implementation of the two part test. In that case Judge Templeton noted that while the city is not required to keep its sidewalks perfectly levelled or free of imperfections, trip edges of at least 2cm or ¾ of an inch, will trigger liability if the municipality does not take reasonable steps to deal with the problem. Trip edges will also occur if there are changes in elevations such as sidewalk to sidewalk or sidewalk to parking lot. Failure to display the change by yellow or white paint could possibly attract liability.
With respect to occupier liability cases (not municipal cases) occupier liability cases are driven by the Occupiers Liability Act which states that an occupier of a premises owes a duty to take reasonable care for the person’s safety that is on the premises. The Occupiers Liability Act would apply to most, if not all, slip and fall cases outside of the municipal aspect. Therefore, if you slipped and fell in an airport, supermarket, shopping mall, a friends home, your own home, a playground, a nursing home, or a restaurant (these are only a few examples) the Occupiers Liability Act would apply.
In these cases, you would sue the person who is in physical possession of the premises or a person who has responsibility for the care and control over the condition, activities, or persons allowed on the premises. For example, if you slip and fall in a supermarket or slip and fall in a grocery store you will first have to determine whether or not reasonable care was taken to protect your safety and/or if any negligence occurred on behalf of the grocery store or supermarket. There are cases that show that proper logs (sweeping logs, floor washing logs) that were detailed every hour were sufficient to escape liability. The long and the short of these cases is that the defendant grocery store or supermarket (or other establishment) would not only have to provide evidence of a system of maintenance, but also show that system of maintenance was in fact implemented. These cases therefore are not very easy cases to put forward if in fact a store is normally kept clean and proper logs recording janitorial efforts are kept by the establishment in question.
The long and the short with slip and fall cases is that they are much more difficult then they seem at the outset. You simply cannot slip and fall, become injured and sue an establishment. The issues can be very complicated and you will want to speak to a personal injury lawyer. There is also the issue of contributory negligence which means that you did not properly lookout for your own safety, you were well aware of the dangers, you were not wearing proper footwear, you were using something in the establishment without instruction, you were not wearing your glasses, or you simply were not paying attention. This means you will contribute to your damages. If you are to receive $50,000.00 for a fracture you sustained in a slip in fall, you may be found 20% liable and therefore, you may only receive $40,000.00 in damages.
Do not try and negotiate these situations on your own. These cases are complicated and you must speak to a lawyer to properly learn your rights and whether or not it’s worth pursuing the establishment, where you were injured.
If you have any questions, please do not hesitate to contact Matt Lalande at Haber & Associates located in Burlington. You may email him at matt.lalande@haber-lawyer.com