403-640-1009 info@taylorconway.ca

I am often called after someone has slipped and fallen at either a shopping mall or at a restaurant. Generally the caller tells me that there was something on the floor that they didn’t see and that they slipped on it and broke their arm, wrist, ankle etc.

The fact that there was something on the floor (or that the entrance-way was icy or covered in snow) is not the end of the matter. Such conditions of the floor do not automatically result in liability on the landowner. You must first consider the legislation that deals with the duty of landowners who invite others onto their property :

The provisions of the Occupiers’ Liability Act, c. 0-4 of the R.S.A. 2000 as amended, will often apply to slip and fall cases Applicable provisions of the legislation are as follows:

    s.1 Definitions

    In this Act,

    (a) “common duty of care” means the duty of care of an occupier of premises to visitors provided for in section 5. . .

    s. 5 Duty of care to visitors

    An occupier of premises owes a duty to every visitor in the occupier’s premises to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the occupier to be there or is permitted by law to be there.

    s. 6. When common duty of care applies

    The common duty of care applies in relation to”

    (a) the condition of the premises
    (b) activities on the premises
    (c) the conduct of third parties on the premises.

    s. 7. Risks willingly accepted

    An occupier is not under an obligation to discharge the common duty of care to a visitor in respect of risks willingly accepted by the visitor.
    . . .
    s. 15. Application of other Acts
    15(1) When the occupier does not discharge the common duty of care to a visitor and the visitor suffers damage partly as a result of the fault of the occupier and partly as result of the visitor’s own fault, the Contributory Negligence Act applies.

In a unanimous judgment the Alberta Court of Appeal in Preston v. Canadian Legion of British Empire Service League, Kingsway Branch No. 175, (1981), 123 D.L.R. (3d) 645 Moir J.A. clarified the changes in the law brought about by the enactment of the Occupiers’ Liability Act as follows: The statute now imposes an affirmative duty upon occupiers to take reasonable care for the safety of people who are permitted on the premises. This change is most marked because it does away with the old common law position that an occupier is only liable for unusual dangers of which he was aware or which he ought to have been aware. Under the old law the occupier could escape liability by giving notice. Now the occupier has to make the premises reasonable safe. That does not absolve the visitor of his duty to take reasonable care, but does place an affirmative duty on each and every occupier to make the premises reasonably safe.

In an ensuing judgment in Lorenz v. Ed-Mon Developments Ltd., [1991] A.J. No. 208 (Alta. C.A.) Kerans, J.A. posed the exact question which a trial judge must ask and answer regarding the duty which originates in this legislation. He stated: The correct question then in deciding whether or not an occupier has been negligent is to ask whether it could reasonably foresee a risk to visitors who exercise ordinary diligence. If the answer is yes, the occupier is negligent, even if the plaintiff failed to exercise ordinary diligence.

From the legislation and the case law, you must ask whether the landowner could have and should have reasonably foreseen the risk the water/produce or ice/snow (as the case may be) on the ground posed to visitors exercising ordinary diligence. If the answer to the question posed is yes, then the landowner is liable for damages.

However, you still must ask whether the person who fell had some responsibility also.

Professor Lewis N. Klar, Q.C. in his textbook Tort Law (3rd) (Toronto:Carswell), 1996 at pg. 455 defined contributory negligence as follows: Contributory negligence can be defined as unreasonable conduct on the part of a victim which, along with the negligence of others, has in law contributed to the victim’s own injuries. It is based on the principle that one has a duty not only to take reasonable care to prevent injuries to others, but to oneself as well.

In Roper v. Gosling (2002), A.J. No. 347 at paragraph 8 the Alberta Court of Appeal set out a two-stage analysis to be undertaken by a court to determine the issue of contributory negligence. It stated:

It is a pre-condition to a finding of contributory negligence that the acts or omissions of two or more persons each be operative causes of the damage or loss for which compensation is claimed. That issue is the first inquiry. If the conduct alleged to be contributorily negligent is not a cause of the loss or damage for which compensation is claimed, the apportionment provisions of the act are not engaged. Unless there is a causal relationship, the impugned acts or omissions are too remote. If the threshold requirement is met, the second inquiry concerns apportionment. The concept of fault relevant to apportionment requires a broader and more general inquiry into the acts or omissions of the parties which operated as concurrent causes of the damage or loss.

Further Section 7 of the Occupier’s Liability Act provides the occupier is not liable in respect of risks willingly accepted by the visitor. The court will look at whether the Plaintiff was wearing proper footwear, was walking at a normal pace, was aware of the water/produce/icy conditions in all of the areas and was watching the Plaintiff’s progress as best as the Plaintiff could in the conditions of the location.. In short was the Plaintiff taking reasonable care for the Plaintiff’s own safety in the circumstances as they unfolded. Did the Plaintiff breach any standard of care which contributed to the Plaintiff’s injury. Did the Plaintiff breach any duty to watch where the Plaintiff was going. If the Plaintiff took reasonable care for the Plaintiff’s own safety in all of the circumstances the Plaintiff’s conduct was not a cause of the Plaintiff’s injuries and contributory negligence would not be found.

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