Overview
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' liability claim.
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 functioning.
This assumes of course that the occupier is at fault.
Summary
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.
http://www.mondaq.com/canada/article.asp?articleid=164942
We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.