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Achieving-Justice

Law of slip and falls

With another winter season upon us,  I am going to share a little bit about the law of slip and falls.

The law isn’t written in some law book, by the way.  

It evolves sort of like the rules of chess played by my son with my father. A rule might fit most situations, but if it gets in the way of my son’s progress, he changes it. 

My son manages to win most of the time.

The evolution of the law is different in that it doesn’t favour one litigant over another. It favours justice.

To learn the law about slip and falls, or any other subject matter, you need to read the very carefully considered and explained decisions of judges who have decided the outcomes of lawsuits.

Don’t call me a forked-tongued, slippery snake of a lawyer for not giving you clear, straight answers about slip and falls. The best I can do is to share about general legal principles.

Please consult with a lawyer for guidance regarding any particular fact pattern.

Legal principle: an owner or occupier has a legal obligation to take reasonable care in the circumstances to make premises safe.

A justice of the Supreme Court of Canada noted in one case:

“Ice is a natural hazard of Canadian winters. It can form quickly and unexpectedly. Although it is an expected hazard it is one that can never be completely prevented. Any attempt to do so would be prohibitively expensive.” (Mr. Justice Cory in Brown v. British Columbia (Ministry of Transportation and Highways), [1994] 1 S.C.R. 420).

The law has evolved to recognize the practical impossibility of maintaining walking surfaces that are 100 per cent clear of ice and snow 100 per cent of the time. Owners and occupiers are required only to exercise “reasonable care.”

Do you exercise a reasonable level of care to avoid those visiting your home from facing dangerously slippery surfaces? You are an owner, or an occupier, of that driveway; the sidewalk leading up to your front steps; those front steps.

Are you actively looking after the safety of couriers, delivery drivers, guests, young folks selling cookies? Your duty of reasonable care also extends to unwelcome door to door solicitors.

Do you take precautions, like the application of sand or ice, to prevent icy conditions from developing? Do you monitor those walking surfaces so that you can take action to remove ice and snow as it develops?

What about the sidewalk bordering your home? 

No, you don’t own it, but there are bylaws in both Kelowna and West Kelowna requiring you to clear snow and ice from those sidewalks within 24 hours of accumulation.

Another legal principle:  a pedestrian has a legal obligation to take reasonable care for their own safety.

You have to expect slippery walking surfaces during a Canadian winter. If you don’t, you’ve become spoiled.

That’s a danger created by those owners and occupiers who have been struggling to keep you safe. The higher the levels of protection to keep you safe, the less care you are likely to take for your own safety.

The law expects you to remain diligently careful about your own safety.

Wear footwear appropriate to a Canadian winter. You can bring your indoor footwear in a bag.

Keep a diligent lookout for slippery conditions. Keep in mind the words of Mr. Justice Cory that ice can never be completely prevented.

My translation: Assume the possibility of ice every step you take.

Take extra care when walking on sloped surfaces, stairs and in freeze-thaw temperature conditions.

Encounter a dangerously slippery surface?

  • Stay off it!
  • If you have to, tromp through snow to go around it.

What if there is a fall

If all property owners and occupiers took reasonable care for the safety of those coming on their premises and all pedestrians took reasonable care for their own safety, we would virtually eliminate slip and falls.

But that might be a bit much to expect in our world, so slip and falls will continue to occur.

For most slip-falls, the most significant consequence is a blow to our pride and perhaps a bruise. Some result in fractures. Most fractures resolve completely within a few weeks.

Other slip-and-fall injuries can be life changing. It is those that most warrant the involvement of a lawyer to assist in assessing legal liability.

It can be unclear, at the time of a slip and fall, how significant and impactful the injury might be. As a precaution, I recommend the following:

Preserve the evidence of at the scene as immediately as possible. Hopefully, you or someone you are with will have the presence of mind to take photos as well as snippets of video of the scene to avoid a dispute as to what the conditions were. 

Maybe there are security cameras? Talk to nearby homes / businesses to have any potential footage preserved;

Preserve your memory of what occurred, as well as the memories of any witnesses while memories are still fresh. Journal, with as much detail as you remember, everything about the incident. 

When I say “as much detail as you remember," I mean that. What did you notice or not notice about the conditions as you approached the point where you fell? Which foot lost traction? How exactly did you go down? What did you notice about the walking surface while you were on the ground?

Preserve your footwear. A common recommendation is to keep them off to the side and not wear them. The more you wear them, the more their tread will be worn. You want to be able to show as robust a footwear as possible.

Have a consultation with a personal injury lawyer with expertise in slip-and-fall cases as immediately as possible. You might have difficulty finding a lawyer to assist you, because these cases are notoriously difficult to prosecute. 

Keep calling. Follow whatever further recommendations you are given.

I wish all of you a safe winter season. As I’ve written a number of times over the years, the very best claim is no claim at all.



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Secret to avoiding accidents

An oncoming driver turns directly across your path.

You don’t have a chance. There’s only a split second between forward movement of the turning vehicle and impact.

You’re at full roadway speed. Add the acceleration of the turning vehicle and the impact is a dramatic one.

Life -ong consequences can flow from far less dramatic collisions. These crashes are life changers, if not enders.

If ever there was a preventable crash, it would be this one.

No special skill is required.

Open your eyes. Look for oncoming vehicles. If there is one: wait.

I’m not talking about scenarios where the straight through driver is pushing a yellow or blowing through a red light. Those scenarios have shades of grey. I’m talking about bright green lights and uncontrolled intersections where the left turner must simply wait for oncoming traffic to clear.

What should we do with those people?

With enough years of crash-free driving their insurance premiums won’t even go up. On what planet does that make sense?

But everyone’s premiums must increase to pay the hundreds of thousands, if not millions, of dollars required to fairly compensate that one driver’s innocent victims.

Do you feel pissed off about compensating the innocent victim? Walk a few minutes in their shoes and you’ll realized that no amount of money could fairly compensate such a life impact.

We need to get pissed off about the driver who was paying so little attention that he or she pulled out directly in the path of an oncoming vehicle.

But that offending driver just “had an accident.” That’s what insurance is for, no?

I believe in insurance covering you for accidents, if the word “accident” means a crash that could not be avoided by the exercise of the most minimal level of care and attention.

Cause a crash as a result of a gross level of inattention behind the wheel and I believe that you should suffer some very real consequences.

The “turn directly in the path of an oncoming vehicle” crash is only one example of a ridiculously avoidable crash.

Another is the rear-ender. Rear-enders are completely asinine. Open yours eyes and monitor what is occurring in front of you and a rear-ender will never occur.

But those rear-enders occur all the time, representing approximately 50 per cent of all of the compensation cases I prosecute.

What is our solution?

Driver skills training is clearly not the answer. It takes the most minimal level of skill to avoid these types of crashes.

Is it consequences? Might drivers pay more attention if they faced actual, impactful consequences for such gross inattention?

What about a new criminal offence of inattentive driving?

At the very least, these drivers should face the same consequences as those caught with alcohol in their system.

How about public awareness about the very severe consequences faced by the victims? Might that help increase our level of attentiveness behind the wheel?

I invite you to attend the sixth annual Kelowna commemoration of a day of remembrance for road traffic incidents. Yes, those losing their lives are remembered. But also those who are left with often life-long injuries.

By standing shoulder to shoulder with those left behind, and those living the lifetime of consequences, we might become motivated to deliver that modicum of care and attention behind the wheel that would prevent these crashes from occurring.

And we might become motivated to push others in that direction as well.

Nov.19,  at the Kelowna Waterfront Park, by the Dolphins, from noon to 2 p.m. Free hotdogs, face painting and other activities will help engage the next generation of drivers.

I look forward to seeing you there.



Death on the highway

A pedestrian is wandering, perhaps stumbling, within the vehicle lanes of the highway going through West Kelowna. 

There was no natural light at 4:30 a.m. on that Oct. 21, 2017, morning.

He is struck and killed.

A news report commends the quick actions of the driver and passenger of the striking vehicle, leaping into action to perform CPR.

How horrific.

I spoke to a motorist who had come down that same stretch of highway just minutes before. He was driving in the left of the two northbound lanes. The pedestrian’s existence in the middle of the road came as a shock to him when the pedestrian’s arm struck the car.

Our hearts immediately feel for the motorists who became victims of that drug and/or alcohol impaired pedestrian. Not only were they physically injured in the crash, the traumatic experience will stay with them forever.

It could just as easily have been any one of us.

Yes, it could. But what does that say about our driving attitudes?

I conducted a disturbing examination for discovery recently. The defendant I examined was clearly of the view that if he was “in the right,” he had no obligation to adjust his driving if another motorist is “in the wrong.”

You’re driving down a highway at 4:30 a.m. You have the right of way.

But we have decided, as a society, that motorists should take care not to run over jaywalkers. 

Check out this specific legal duty contained within the Motor Vehicle Act to “…exercise due care to avoid colliding with a pedestrian who is on the highway.” (See Section 181). 

And the law has long established that regardless of who has the right of way, both parties have a duty to exercise due care (see Wong-Lai v. Ong, 2011 BCSC 1260, paragraph 55). 

We have a much higher legal duty, as drivers, than keeping our vehicles “between the lines,” stopping for stop signs and red lights, and keeping within the speed limit.

Might that also be a moral duty? Laws be damned, might it be reasonable that we keep a look out to prevent running over pedestrians? Even those wandering around drunk and/or stoned at 4:30 a.m.?

But it was dark.

Without a reflector vest or otherwise highly reflective clothing, a pedestrian will blend into the darkness just like — just like a deer or a moose.

But unlike a deer or moose, pedestrians don’t typically leap out from behind bushes or out of ditches.

If you are keeping a careful look-out to see what’s going on ahead of you, would you notice a pedestrian before the moment that you strike them?

If not, are you over-driving your headlights?

Let’s say you did happen to notice a pedestrian walking along a highway at 4:30 a.m. Would you automatically slow down and move into the left lane as a precaution?

It’s a legal requirement if there is an emergency vehicle, tow truck, etc., with flashing lights sitting on the shoulder (see section 47.02 of the Motor Vehicle Act Regulations).  

Might a pedestrian at that hour command a similar, cautious response? That way, if the pedestrian is drunk and/or stoned (perhaps a likelihood at 4:30 a.m.), stepping into your lane will not kill them.

Of course, if you noticed the pedestrian in your lane, you would slam on the brakes and swerve to miss them.

Step one noticing. Noticing requires keeping a careful look-out and not overdriving your headlights.

Is that too much to ask of each and every one of us?  At all times?

Please note: I was not there. I did not investigate the incident. I have not spoken to anyone other than the witness I referred to. I don’t know if the pedestrian was drunk, stoned or sober. 

My heart goes to all involved. I am hopeful that this tragedy might help us adjust our driving attitudes and behaviours to help prevent road traffic tragedies.



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Mr. Bonehead strikes again

Mr. Road Safety has pulled another boner.

Unfamiliar with that expression? According to the ever reliable online urban dictionary: “…in time, the expression 'to pull a boner,' meant a bad blunder; a mistake that was costly. And a man who pulled such boners was often described as a ‘bonehead.’”

I’ve done some really, really stupid things. Blind luck has saved me and others from serious consequences.

There’s the time my father-in-law suggested I check the alignment on the family mini-van. Turned out the serious wheel wobble had nothing to do with alignment and everything to do with my failure to torque the lug nuts when I changed over the winter/summer wheels.

And then there’s the modification I had done to the smallest of riding lawn mowers, called a Kermit. I had a hitch welded on for pulling a hot dog float (Hergott Dogs) in the Westside Daze parade. I had failed to consider that the trailer weight might cause Kermit to flip over backwards.

An alert spectator noticed the front of Kermit lifting up. He saved the driver (my father) from serious injury by leaping forward to hold it down.

This bonehead has struck again.

I’ve begun enjoying the incredible Okanagan quadding resources. I didn’t grow up with toys like quads. It’s a hoot! If you’ve not explored the incredible trail system created and maintained by the Okanagan Trail Riders Association, I strongly encourage you to.

I haul the quad around in a utility trailer, securing it with a heavy duty ratchet tiedown. The tiedown extends from the front of the trailer, over the top of the quad, and secures under the back of the trailer. I then ratchet it tight.

Not tight enough.

A bump on the way home compressed the quad shocks, loosening the tiedown tension and causing the end to dislodge.

I was mortified seeing my quad on the road in my rear-view mirror.

It didn’t go far (it was in gear and the brake was on) but it was blind luck that another vehicle wasn’t directly behind me.

I learn from my mistakes.

I bought a torque wrench, learned that baby riding lawn mowers shouldn’t be modified to pull trailers and now I’ve learned how not to secure a quad to a trailer.

But I shouldn’t need “close calls” to snap into risk and safety awareness! Each of those close calls could have had very serious consequences.

I’m a reasonably intelligent fellow. I should have been able to avoid these close calls with just a bit of thinking about risk and safety.

Why didn’t I? I suppose I have an “I can handle this” mentality.

Is it arrogance that leads to that mentality? It is a normal human thing to want to hide the fact that we don’t know everything? To admit that what we are doing might come with risk and should be carefully considered?

Does it feel like we’re showing weakness if we slow down with what we’re doing and carefully consider what the risks are and how they might be avoided?

I hope by sharing these bonehead experiences others might learn from them and be more proactive with avoiding risk. Awareness of risks is half the battle. Or perhaps 95 per cent.

Is there a connection between my attitude that led to these bonehead experiences, and attitudes that cause car crashes?

Do too many have the “I can handle this” mentality? Do too many feel that actively taking steps to avoid risk is a display of weakness?

  • “I can handle taking a business call while driving." 
  • “I can handle a quick text." 
  • “I can drive safely without putting conscious effort towards keeping my attention on the road.”

I know that I can’t.

You can’t either.

You’ll get away most times, with close calls here and there. But that time will come where there’s serious consequences and you’ll learn. 

Your learning will be too late for you and your victims.



More Achieving Justice articles

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About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

Email:   [email protected]
Firm website:  www.hlaw.ca
Achieving Justice Legal Blog:  http://www.hlaw.ca/category/all-columns/
One Crash is Too Many Road Safety Campaign: www.onecrashistoomany.com
Google Plus:  https://plus.google.com/+HlawCanada/posts
Facebook:  www.facebook.com/personalinjurylawfirm
Twitter:   twitter.com/Hergott_Law



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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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