There is a hierarchy in how “lucky” you can be when suffering from a personal injury accident. The gold standard is being rear-ended by an ICBC insured driver. As “who-is-at-fault” (liability in legalize) is not an issue, coverage—as in an eventual cash settlement—is not a problem and all you have to focus on is recovering from your injuries, which is not to downplay those who have been seriously injured in this manner, but merely to emphasize you have one less difficulty to deal with in an already miserable and stressful situation.
Way down on that list, however, is the slip and fall accident. This often falls under the umbrella of what is known as “occupier’s liability” wherein a denial of liability—as in, this was YOUR fault and we’re not paying—will be the usual and initial response of any involved insurance company (who, like ICBC, can afford top caliber defence counsel to really get the point across, should you decide to sue). I say often, because there are generally two broad categories of slip and fall accident that 90 plus percent of these cases fall into: the accident happens in privately or publicly owned premises (the aforementioned “occupier’s liability” scenario) or occurs on a road or sidewalk or other uneven surface—such as slipping on ice or tripping over a crack in the sidewalk, or skiing accidents, which will be a topic for another day.
The occupiers liability scenario is often the trickier of the two beasts. So, if you slip and fall in “ABC Restaurant” in Langley and hope to see some kind of recovery for that broken ankle that cost you a year out of the workforce and put you behind on your mortgage payments, keep the following pointers in mind.
Firstly, know what it is that caused the problem and make sure everyone else knows about it too, as soon as possible. This is an easy detail to ignore, especially if you are in shock or in agonizing pain. However, if you can’t identify with reasonable certainty what it is you slipped or tripped on, that will likely translate to a finding of no liability against the restaurant or wherever, should the matter ever end up inside a courtroom (as it often will—insurers will often force a trial when feeling confident they can get your case dismissed and will refuse to entertain any sort of settlement beforehand—other than possibly nuisance value, i.e. one or two cents on your settlement dollar).
So, make sure the gooseberry sauce (or whatever it is) is recorded as the culprit on the accident form that is often filled out by management at the time, that you or someone else photographs it (with the advent of smartphones, this should no longer pose a problem for anybody) or even preserve a sample (although that might be going too far, but you get the point). The bottom line is: “I don’t know what I slipped on but it must have been something” will not be good enough to secure you a recovery or prevail in court.
Any witnesses to the accident are also crucial (especially strangers, who have no vested interest in the outcome—known as independent witnesses in legalize), so make sure you get at least a name and a contact number. Was there any video surveillance that recorded your fall? Occupiers will often try to “lose” such evidence or the video may be wiped after a few days as a routine unless they are told to specifically retain it.
Footwear is another consideration. Sensible low heeled shoes or shoes appropriate for the environment (running shoes in a gym etc) are going to be better than stilettos in this situation and you should always keep the shoes you were wearing when you fell.
If it’s a poorly lit area, something not to building code (i.e. no hand rail where there should be one) or an improperly finished floor that allows no traction or any number of similar scenarios, the sooner you see a lawyer about it, the better. Sometimes, you will need to retain an expert who can go the scene while the evidence is still preserved and make a determination about what may have contributed to your fall. Occupiers (the owner of Mama Tucker’s in this example) have a legal duty to take reasonable precautions to ensure customer safety on their premises. A properly and timely hired expert can often spell the difference between success or failure in these types of accident. And remember, the stronger your case in terms of being able to show the occupier was negligent (not doing what they should have done in the circumstances), the more likely it is that the insurer of the occupier (and they are the ones generally calling the shots) will settle with you out of court. Time is of the essence.
There are other considerations a lawyer will be aware of that you may not. In most stores selling produce, there is a sweep log that records whether floors were monitored properly for slipping hazards. Your lawyer will ensure this is produced (as it will not necessarily be volunteered if you are representing yourself before any lawsuit has started and are trying to negotiate a settlement directly). An improperly or filled-out-after-the-fact sweep log will often mean the crucial difference between failure or success in the liability arena.
On a closing note, stay safe and be observant whenever you are out and about—part of the assessment courts will also enter into, is whether you were looking out for your own protection, so being oblivious or careless as to your surroundings can also result in your case being dismissed. This approach has the additional benefit of helping you avoid being embroiled in such an accident in the first place.
If you have been involved in a slip and fall DBM is here to help. Please call at 604-939-8321