Insurance

Good records key to liability defence

By AdvocateDaily.com Staff

A recent decision shows the value of good record-keeping for businesses that use professional cleaners, says Toronto insurance defence lawyer Heather Vaughan.

In the case, an Ontario Superior Court judge found the property managers of a department store liable for the injuries suffered by a customer under the province’s Occupiers’ Liability Act, ordering them to pay her damages of $100,000.

The woman broke her kneecap when she slipped and fell on a tile floor in the shop’s vestibule following a bout of heavy rain in 2012.

Although the store employed a property manager to clean its premises, all the company’s records could show was that one cleaner was assigned to the entire store and that she had performed “light duty” on the morning of the accident.

“There was some work that had gone on, but the record-keeping was very poor,” Vaughan, a partner with Benson Percival Brown LLP, tells AdvocateDaily.com. “It’s a reminder for corporate entities and their professional cleaners that they should keep detailed, reliable records about what steps they have taken to keep their property safe.”

Relying on evidence from the plaintiff and her sister, the judge found that the floor around a mat in the store’s vestibule was still wet when the woman slipped and fell, even though the rain had eased up around the time of the accident.

Vaughan, who was not involved in the case and comments generally, says the defendants were hampered by their inability to offer an alternative theory for the cause of the woman’s fall. She says a strong set of cleaning records may have helped with that effort.

Instead, the judge noted: “There is no evidence that a [property management firm] employee cleaned the floor on December 2, 2012. There is no evidence that she even visited the area on that day. There is no evidence concerning areas she cleaned in the 118,348 sq. foot area of the [company's] store on December 2, 2012.

"Neither is there any evidence that her work had been supervised on that day to ensure that, given the weather conditions on December 2, 2012, patrons seeking to participate in Christmas shopping would not have to contend with conditions that increased the possibility of a slip and fall,” he wrote in his decision. “Not only is there no evidence of a safety system to abate the risk of a fall, there is no evidence that whatever cleaning system [the property management company] relied upon was adjusted to the adverse weather conditions.”

The defendants also called an expert in kinetics who performed a test on the floor of the vestibule where the accident occurred. His results showed that whether the floor was dry or wet, it met the minimum standards of friction between feet and floor, suggesting that it posed no risk of slipping in either conditions.

“The court didn’t attach much weight to that evidence because of limitations with the testing,” Vaughan says. “The expert was conducting the test under controlled conditions, and he admitted that there were other factors that could affect the results.

“Commercial enterprises are going to be judged on what reasonable steps they took to react to changing weather conditions, but they seemed to be saying that they didn’t have to do anything,” she adds.

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