How is liability for a slip and fall determined in Nova Scotia?
The Occupiers’ Liability Act determines liability for slip and falls in Nova Scotia.
In Marche v. Empire Co., 2001 NSCA 59, the Nova Scotia Court of Appeal confirmed that a property owner must take all reasonable steps to minimize the risk of injury to people on the property. The standard is one of reasonableness; it does not require perfection. To meet the standard of reasonable care, the property owner must tailor their maintenance system to the particular circumstances that could give rise to unusual dangers for people on the property, depending on the purpose of the property. What meets the reasonableness standard in one situation may fall short in another.
In Durelle (Litigation Guardian of) v. Sobeys Group Inc., 2003 CarswellNS 892, the Nova Scotia Supreme Court stated that a property owner is not negligent if they take reasonable care to see that people are reasonably safe while on the premises. In this case, Sobeys had a system in place that was sufficient to discharge its duty to take reasonable care to protect its customers from unusual dangers.
Occupiers’ liability is set out by the Supreme Court of Canada in Campbell v. Royal Bank,  SCR 85, a case Nova Scotia has adopted for many years. The Nova Scotia Court of Appeal in Vyas v. Colchester East Hants District School Board, 1989 CanLII 5265 (NSCA) summarized the leading cases on occupiers’ liability and adopted the test for negligence as set out in Fiddes v. Rayner Construction Ltd., 1963 CanLII 599 (NSCA). In that case, the Court listed the following factors that parties must consider in determining liability:
- Was there an unusual danger?
- If so, was it one which the property owner knew or ought to have known about?
- If so, did the property owner use reasonable care to prevent harm from the danger? And
- Did the injured person use reasonable care for their own safety?
The first step of the test is to determine whether there was an unusual danger on the premises. If not, the case should go no further. (See MacIntyre v. Beaton, 1994 CanLII 4288 (NSSC)).
Was there an unusual danger?
Determining whether there is an unusual danger is an objective test. A danger is unusual if it does not typically arise given the intended use of the property.
However, Marche tells us that even if a condition (i.e., water on floors from winter boots) is not unusual in the sense in that it is commonplace, the property owner can still be liable. This situation can arise where the danger is not particularly uncommon and (1) the property owner could easily have eliminated the danger and (2) it is reasonable for the injured party to expect that the property owner would eliminate the danger. In these cases, the condition that caused the injuries qualifies as an “unusual” danger.
If so, did the property owner know or ought to have known about the unusual danger?
If there was an unusual danger present on the premises, the next step is to determine whether the unusual danger was one that the property owner knew or ought to have known about. This is a purely subjective inquiry that relies on the unique facts of each case.
If so, did the occupier use reasonable care to prevent harm to the injured party from the unusual danger?
If so, did the property owner use reasonable care to prevent harm to the injured party from the unusual danger?
Young v. Sobeys Inc., 1993 NSCA 165 illustrates that property owners have a duty to take reasonable care of the safety of people on the premises, which requires an adequate maintenance system. This maintenance system must involve identifying and removing any objects that may fall onto the floor of the property.
Did the injured party use reasonable care for their own safety?
Breau v. Amherst (Town), 1996 CanLII 5355 (NSSC) tells us that in assessing an occupier’s liability, parties must consider whether the injured party paid attention to their surroundings. If you slip and fall, your diligence comes into play when determining the property owner’s responsibility for your injuries.
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