March 10, 2006
By Brian Babcock
A recent case in the Ontario Court of Appeal has clarified what an injured person has to prove to show fault on the part of a parking lot owner or operator.
In the case of Kamin v Kawartha Dairy, the injured Plaintiff slipped in the parking lot of the dairy. However, after the fact, she was not able to identify the exact spot where she tripped. Because of this, the trial judge found that she could not prove that the dairy had failed to meet the standard of a reasonable occupier. In doing so, the judge followed earlier law, based on a decision going back to 1944, which said, essentially, that proof of liability required that an injured person prove:
- Where she fell
- That there was something defective at that location
- That the defect caused the fall
Excellent expert evidence in this case established that the parking lot generally was poorly maintained. It was at or past the serviceable life, and was overdue to be repaved. The appeal judge even noted that the disrepair was so extensive; it was not surprising that the Plaintiff and her husband, going back afterwards, could not pinpoint the defective location.
The Court of Appeal overturned the trial judge, ruling that the 1944 case did not apply. In 1990, the Supreme Court of Canada, in a medical malpractice case, decided that causation did not need to be proven with scientific accuracy, and that common sense should be applied. In Kamin , the Court of Appeal clarifies that this approach applies also to slip and fall accidents in parking lots (and generally, to most, if not all, accidents).
In summary, the test now appears to be:
- Was the condition of the parking lot bad enough to have caused the fall?
- Is there any other explanation for the fall? In this regard factors include:
- Was the Plaintiff a careful person?
- The weather
- The health, eyesight and walking ability of the Plaintiff
If these questions are answered in favour of the injured Plaintiff, then the judge must draw the inference that the injury was caused by the parking lot owner’s fault. Although there might still be cases where the specific location must be pinpointed, owners and insurers will no longer be able to rely on this as a defence where there is a general state of disrepair.