A motor vehicle claim is one type of "tort" (i.e.
fault based) claim you may need to consider as a result of your
disability. The "nuts and bolts" of motor vehicle claims
have been discussed in a prior article. There are, however, other
kinds of tort claims you may need to consider depending on how your
disability arose. A common example is an "occupiers'
liability" claim, which is discussed below.
Components Of An Occupiers' Liability Claim
An "occupier" of property can be an owner, landlord,
tenant or anyone who has possession, responsibility for or control
over the condition of a property, the activities carried on at the
property or the persons allowed to enter the property. There can be
more than one occupier of a property.
The law requires that an occupier take reasonable steps to keep
a property safe for persons entering it. The standard is not one of
perfection but rather one of reasonableness.
By way of example, if you slip and fall on the wet floor of a
shopping mall and are injured, you may have an occupiers'
To succeed with such a claim the main items you will have to
prove are the following:
That the occupier failed to take reasonable steps to keep the
property safe. You will need information about inspection,
construction, cleaning standards and efforts made to prevent
injuries such as yours.
That the occupier's negligence caused your injuries. The
occupier might have been negligent in failing to mop up or cordon
off a certain part of the interior of the mall that was wet, for
example. However, if you fell before reaching that part of the mall
because you tripped on your shoelace then the occupier's
negligence did not cause your injury.
That you suffered "damages" as a result of the
occupier's negligence. It will be necessary for you to produce
medical evidence of the injuries you sustained. It will be
necessary for you to demonstrate that the injury caused
restrictions in your social or occupational functioning. You can
also advance a claim for out-of-pocket expenses, lost income, and
medical and rehabilitation needs.
Many occupiers' liability claims arise from injuries
suffered at shopping malls, bars, restaurants and other businesses
that have large numbers of patrons or customers. However,
occupiers' liability claims also arise from injuries suffered
at private residences. In almost all occupiers' liability
cases, the occupier will have insurance that will respond to the
claim on his or her behalf.
In an occupiers' liability claim, or any type of tort claim
for that matter, the defence may argue that you are
"contributorily negligent," in other words that you are
partially responsible for your injuries. If the Court agrees, there
will be an "apportionment" of liability. If you are found
20% contributorily negligent, for example, the Court will reduce
the damages you would otherwise receive by 20%.
The purpose of an occupiers' liability claim, as with tort
claims generally, is to compensate you for your losses and to
return you, to the extent possible, to your pre-injury level of
This assumes of course that the occupier is at fault.
In the unfortunate event you are injured while attending someone
else's business or property, it is important to remember that
the principles of occupiers' liability may apply to provide you
with compensation for your injuries and losses to the extent the
occupier was negligent and caused your injuries and losses.
Neil Wheeler is a partner at the law firm of Lerners LLP. He is
also the Practice Group Leader of the Plaintiff Personal Injury
Practice Group at the Toronto office of Lerners LLP. He acts for
injured and disabled persons in litigation matters throughout
Ontario. He has conducted trials that have changed the law for the
better for injured and disabled persons.
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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