The Ontario Superior Court of Justice has highlighted the need to carefully examine the circumstances surrounding a slip and fall, as not every injury means that someone is liable. In Martin v. AGO et al, a lawyer (the “Plaintiff”) was walking into a courthouse and suffered a slip and fall. The Plaintiff then sued multiple insurers (the “Defendants”), claiming that they were jointly and severally negligent.
This case serves as an important refresher of the analysis required in Occupiers’ Liability cases. Justice M.J. Valente carefully went through the various portions to highlight the key aspects.
The Court emphasized that the standard of care is not one of perfection and ultimately concluded that the Defendants had met the standard of care based on the following facts:
- There were six mats placed inside the courthouse at each of the entrances.
- There was only a small amount of water that led to the fall, which was not easily perceptible.
- There was a system of inspection and cleaning.
- There was evidence of careful placement of mats at the entrances.
- There was a patrol system that included scanning for spills.
- There was a contact number to report any spills.
- There was a scheduled (daily) installation of signs on the ground.
In terms of causation, the Plaintiff failed to prove that the fall would have been prevented if the Defendants had opted for a more stringent system of surveillance. In other words, using the standard “but for” test, the court found that the Plaintiff would have fallen regardless. The spill was only a small amount, equivalent to a melted ice cube. Finding the Defendants liable would mean that an insurer would be responsible for all slips and falls, which is inconsistent with the case law.
Lastly, while technically unnecessary because the earlier findings on the standard of care and causation, the Court held that the Plaintiff was contributory negligent, as he had placed himself in a position of foreseeable harm and, therefore, must accept some responsibility. The Plaintiff conceded that his shoes were worn, his soles were smooth, and several people had walked by the area where the fall occurred with no issues. Based on these facts, the Court assessed his negligence at thirty percent.
This decision is a reminder that the standard of care is one of reasonableness, and not perfection, as outlined in s. 3(1) of the Occupiers’ Liability Act, RSO 1990, c O.2. While it is expected that Defendants take reasonable steps to prevents slip and falls, not every slip and fall can be prevented.
Sebastian di Domenico
Having been born in Medellin, Colombia, Sebastian likes his coffee strong and his advocacy stronger. Sebastian has a diverse insurance defence practice, including motor vehicle accidents, occupiers’ liability, and accident benefits.