An analytical take on premises liability and negligence

Premises liability is a concept widely applicable in personal injury cases. It comes into play when an injury occurs because of unsafe, unkept, or defective conditions on someone’s property. In Ontario, one of the most common accidents that arises from such dangerous property conditions is a slip and fall (or trip and fall).

When a victim sustains injuries as a result of an unkept or unmaintained property, they can sue or claim damages against the negligent owner of the property. This is because the Occupier’s Liability Act requires the occupier of a property in Ontario to keep the people entering the property reasonably safe, provided such a user is not trespassing. An ‘occupier’ is an owner, tenant, or any other party who has control over the premises. The obligation to take care applies to commercial, residential, and government space alike, including stores and restaurants, municipal and government roads, sidewalks, public transport, schools, apartments, or any other common spaces which see an influx of people. But while injuries sustained on these properties are commonplace in Ontario, there are certain factors to keep in mind before initiating a personal injury claim for damages.

To assess whether an injured person or a plaintiff has a strong case for a negligence claim against an occupier or a defendant, one must first ascertain whether the defendant owned, occupied, or leased the property. One must then assess whether the defendant was negligent in their use or upkeep of the property. Negligence or duty of care is a legal concept that determines whether a defendant committed a careless act that resulted in harm to another person. If the plaintiff can prove that a defendant’s negligence was a substantial factor in causing the injury to the plaintiff, then the plaintiff will have a viable case based on premises liability.

A parametric search run on the Ontario Superior Court of Justice (OSCJ) data from 2018 through 2019 revealed that the OSCJ decided 92 slip and fall cases with the main cause of action being the defendant’s negligence. Analytical data for that period finds the average amount of damages awarded in those cases was $80,189.44 1 , and the highest amounts were awarded for past loss of income or earning capacity.

Past loss of income is usually calculated by multiplying the plaintiff’s daily wage by the number of days he or she missed. The second most commonly awarded damage type is ‘General or non-pecuniary’ damages, which is awarded for the pain and suffering caused by the incident.

On the other hand, out of the 92 cases, there were 33 instances where the defendant moved for a summary judgement motion to dismiss the plaintiff’s claim, and the data reflects that the defendant had a success rate of 51.61% 2 in getting the claim dismissed. The most common reason for the defendant’s success in these cases was the plaintiff’s failure to establish that a standard of care existed on the part of the defendant(s).  Without this crucial first step in proving premises liability, the claim of negligence cannot proceed, and the success of a plaintiff’s claim is jeopardized.

  1. This report is generated using Court Analytics’ Damages Report’ feature. Parameters selected to run this report – Court: Ontario Superior Court of Justice; Practice Area: Personal Injury, Facts: Slip/Trip & Fall Accident, negligence.
  2. This report is generated using Court Analytics’ ‘Hearing Analytics Report’ feature. Parameters selected to run this report – Court: Ontario Superior Court of Justice; Practice Area: Personal Injury, Facts: Slip/Trip & Fall Accident, Negligence; Hearing type: Motion – Summary judgment to dismiss a claim.

Leave a Reply

Your email address will not be published. Required fields are marked *