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Read Issue Seven of
The Quill
BOYNECLARKE LLP
Personal Injury Newsletter
* Pedestrians -
Know Your Rights
* Government commits to
improving pedestrian safety
* and more...
read The Quill
Dear Mr. Napier:
Now that we have reached the
official closing of our Personal
Injury Case I would like to thank
you and your staff. At the outset
when my husband and I were
still shaken up and emotionally
fragile, you displayed great
understanding and tact. We
both felt we were dealing with
a warm caring human being.
You and your staff guided us
through the necessary forms
and procedures, efficiently and
expertly. I particularly appre-
ciated being able to email Erin
or Ashley about my concerns
and get a response from them
by email or phone. They were
unfailingly helpful and consid-
erate. I am left with a strong
sense that yours is a happy-
positive office culture.
Last but not least, my husband
and I are very pleased with the
financial settlement you were
able to get for us. Thank-you.
Yours truly,
Suzanne Schuurman
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You and the Law...
It is important to have a clear understanding of your rights and responsibilities, and to know the law. Matt Napier with his team has handled the most personal injured cases in Nova Scotia over the last 25 years. Our goal is to do the best we can for you, and to ensure you see the best results in your personal injury case.
This page is being developed to address specific client issues. It may be useful to you. If you'd like us to add a link, that answers a specific question, email us here.
ANSWERS
Slip and Fall Liability Info (Home and Business)
As an owner, or tenant, of residential or commercial property you have certain responsibilities for the safety of persons who access your premises. As these liabilities can equate to significant costs and legal ramifications, it's important to have a clear understanding of those responsibilities and to ensure that you have done all that is reasonably possible to make the property for which you have responsibility safe for others.
The following information is provided as a guide to help you to better understand your legal obligations. For further information it is recommended that you consult a lawyer.
Who is responsible?
As a starting point it is important to have an understanding of what is your responsibility. This issue can sometimes be confusing, particularly as a tenant. In Nova Scotia, the Occupier's Liability Act. 1996, c. 27, s. 1. sets out specific direction on this subject.
This Act identifies the person responsible for maintaining safe premises as an "occupier". An occupier is a person who has either the physical possession of a property or who has the responsibility for controlling the people allowed or activities conducted on the premises. It is important to keep in mind that there can be more than one occupier and that exclusive control of the premises is not required in order to be deemed liable.
Who are you responsible for?
The Occupier's Liability Act sets out the "duty of care" that an occupier must meet in making the premises safe. The occupier has a duty to take required care to ensure that every person on the premise is reasonably safe. This duty includes ensuring that any property brought onto the premises by either a visitor or a customer does not create a hazard. An occupier must always maintain and regulate the condition of the premises. This involves monitoring the activities conducted and the conduct of third parties to ensure that unsafe activities do not occur.
How is the duty of care assessed?
In determining whether the duty of care has been met, consideration is given to the following factors:
1. Did the occupier have any knowledge that there were people or dangerous property on the premises? Should the occupier have expected that the person or property would be there?
2. Was the person invited onto the premises? Was the person a trespasser?
3. What was the age of the person entering the premises?
4. What was the person's ability to appreciate the danger?
5. What effort did the occupier make to give warning of the danger concerned or to discourage persons from incurring risk?
6. Is the risk something that the occupier should have protected against?
The "Trespasser"
A trespasser is someone who enters the premises without being invited. The trespasser's presence is either unknown to the occupier or objected to by him. A trespasser who enters for the purpose of committing a crime is deemed to have assumed the risk for his own safety. However, an occupier does owe a duty not to create a hazard with the deliberate intent of injuring any person or in acting with reckless disregard for the safety of human life. For instance, you are not permitted to set a "trap" to deter either unwanted guests or burglars.
Normally children are not considered to be trespassers when they wander onto your property or into your premises.
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Slip and Fall Cases
While the law does not require perfection of an occupier, the standard - which requires "reasonable care" - is high. Below are some examples of case law.
a) Although a system for the prompt discovery and removal of materials on the floor of the premises was in place, the court found that the system was inadequate. (Armstrong-Wilson v. Sears Canada Inc. (1990), 100 N.S.R. (2D) 17)Unfortunately, despite a great deal of preventative action on your part, accidents may still occur. However, by taking active steps towards making your premises safe, you can reduce your stress, avoid unnecessary claims and ensure that your insurance premiums remain as low as possible.
b) Woman slipped and fell in grocery store after stepping on a grape. The grocery store did not sweep as per the schedule but rather responded when items were discovered on the floor. Grocery store was liable/at fault. (Marche v. Empire Co [2000] N.S.J. No. 80]).
c) Person slipped in a government institution in the shower area. Amount of water was the same as if a wet mop had moved across floor. The shower area was inspected daily. Action dismissed. (O'Brien v. Nova Scotia (AG) [2000] N.S.J. No. 457)
d) Person fell in the lobby of a Holiday Inn after stepping on some unidentified liquid. No warning signs were posted indicating that the floor was wet. The court held that there was no reason for the person to suspect that it would be wet. The court held that hotel did not have an adequate maintenance policy in place to avoid the danger that caused the slip and fall. Holiday Inn liable/at fault. (Ryan v. Holiday Inn [2000] N.S.J. No. 394)
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The Napier Legal Team, part of the BOYNECLARKE LLP law firm - www.boyneclarke.ns.ca - is located at 33 Alderney Drive, Suite #600, Dartmouth, N.S. Canada B2Y 3Z5 P.O. Box 876
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