Risk Management Advisories

OCCUPIER'S LIABILITY

Occupier's liability refers to that branch of negligence law which deals with the liability of an occupier of land for injuries suffered by persons while on the land.

An "occupier" is defined to include:

1. a person who is in physical possession of premises, or
2. a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, despite the fact that there is more than one occupier of the same premises. There can be more than one "occupier of a premises at any given time.

Since both the school board and the principal of a school have a responsibility to maintain the school premises, they would fall within the statutory definition of occupier.

The Education Act outlines the responsibilities of the school board.

170. Duties of boards: - Every board shall....

1. Repair property. to keep the school buildings and premises in proper repair and in proper sanitary condition, provide suitable furniture and equipment and keep it in proper repair, and protect the property of the board.

   The principal's responsibilities are outlined in the Education Act. 265. Duties of principal. - It is the duty of the principal of a school, in addition to the principals duties as a teacher...Section (j): Care of pupils and property. - to give assiduous attention to the health and comfort of the pupils, to the cleanliness, temperature and ventilation of the school, to the care of all teaching materials and other school property, and to the condition and appearance of the school buildings and grounds. The duty of care owed by school boards and principals as premise occupiers is set out in s.(3(1)) of the Occupier's Liability Act

2. 3(1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
   
   In deciding whether ‘reasonable’ care has been exercised, the courts will consider the likelihood of injury to others, the seriousness of the risk and the burden of avoiding the risk.
   
   The courts will expect school premises to be kept in a reasonably safe condition including grounds, equipment and buildings. Claims have been made against school boards for injuries caused due to:
   1. grounds being in poor condition, eg., potholes, ice and snow, pathways not maintained, etc.
   2. equipment in disrepair and lack of maintenance, eg., guards broken on shop machines, lack of ground cover under playground equipment, broken glass in sandbox, etc.
   3. buildings in disrepair and lack of maintenance, eg., parts of or attachments to buildings falling down, broken steps, improper or broken handrails, etc .

Two of the most common situations are discussed below:

1. ICE AND SNOW

In the Urzi v Board of Education for the Borough of North York (1980) case, the plain- tiff slipped and fell on an icy walkway on the defendant’s property. The defendant had not applied sand or salt. It was held that the defendant owed a duty to avoid a foreseeable risk of harm from any unusual danger on the occupier’s premises of which he knew or ought to have known. The defendant was negligent in failing to rectify a dangerous situation.

2.LOSS PREVENTION

To prevent injuries to people and to protect the board and board staff from negligence, the walkways (including paths created by pedestrians), steps, parking areas, and paved play areas must be cleared of snow, and if ice is present, salt and/or sand must be applied.

Further, a daily log book must be maintained to record daily activities including but not limited to:

1. Date
2. Name of caretaker/custodian
3. Time of arrival and time(s) of inspection(s)
4. Weather conditions including temperature reading
5. Areas inspected and findings
6. Action required/taken and time completed
7. Amount of sand and/or salt used
8. Areas where sand and/or salt spread
9. Subsequent activities, noting time(s) and action(s) taken
10. Entries should be signed or initialed by caretaker/custodian.

(b) STEPS TO TAKE SHOULD AN ACCIDENT OCCUR

1. Pictures - take pictures of the accident scene particularly in situations where the conditions might change quickly. Note date and time of day pictures are taken.
2. Weather Conditions - document weather conditions indicating time of last snow, rain or freezing.
3. Maintenance Routine - document regular maintenance routine - when performed and by whom.
4. Witnesses - list names, addresses and phone numbers of any witnesses.
5. Footwear - make note of type of footwear worn by injured party.
6. Assistance - note name, address, and phone number of anyone who provided assistance to the person directly after a fall.
7. Comments - note any comments made by injured person after a fall and to whom.

TO PREVENT INJURIES, SALT AND SAND. TO DEFEND ONE’S ACTIONS, DOCUMENT, DOCUMENT, DOCUMENT.

2. PLAYGROUNDS AND PLAYGROUND EQUIPMENT

Most of the injuries to students occur on playgrounds and on playground equipment. To prevent and reduce injuries requires:

1. Supervision - adequate supervision to ensure that all play activities are conducted in a safe manner.
2. Equipment which meets safety design standards.
3. Maintenance of grounds and play equipment in accordance with standards.
4. Training of students on proper use of play equipment, playing of games, and where to play. Ensure that play equipment and games are age and size appropriate to students.

Fortunately, the Canadian Standards Association (CSA) released the CSA-Z614 Standard on Children’s Playspaces and Equipment. This manual provides standards with respect to design, location, installation, maintenance, inspections, record-keeping, etc. This document will be the standard which courts will apply as a test to determine whether ‘reasonable’ care has been taken by the school board and the principal to provide for the safety of those on school property and using school equipment.

It has been suggested that perhaps as many as 70% of the injuries from playground equipment are caused by falls from the equipment. Usually, the injury is caused due to inadequate groundcover. Everyone knows that children will fall from play equipment. It is foreseeable that if they fall on hard ground, they will be injured. Therefore, it would be ‘reasonable’ to ensure that there is adequate groundcover to prevent or reduce injuries. Failure to do so will likely constitute negligence.

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