Risk Management

Risk Management Advisories

OCCUPIER'S LIABILITY

Occupier's liability refers to the legal obligations and responsibilities of occupiers as stipulated in the Ontario Occupiers’ Liability Act (1980).

An occupier is defined as someone with either physical possession of premises, or responsibility for and control over the condition of the premises or the activities carried on there or control over the persons allowed to enter the premises.

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 Act, in S.3 (1) establishes that an occupier has an affirmative duty [of care] “in all the circumstances” to ensure the premises are reasonably safe.

The duty of care applies whether the danger is caused by the condition of the premises or by an activity carried on the premises.

The “in all the circumstances” requirement makes every case fact specific and makes it difficult to predict the extent of liability.

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 due to:

Grounds being in poor condition, e.g., potholes, ice and snow, pathways not maintained, etc.

Equipment in disrepair and lack of maintenance, e.g., guards broken on shop machines, lack of ground cover under playground equipment, broken glass in sandbox, etc.

Buildings in disrepair and lack of maintenance, e.g., parts of or attachments to buildings falling down, broken steps, improper or broken handrails, etc.

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 degree of difficulty on the occupier in preventing or eliminating the risk.

Ice and Snow

Loss of balance, more commonly referred to as slip and fall claims due to snow and ice represent the vast majority of occupiers’ liability claims.

TO PREVENT INJURIES, EMPLOY REASONABLE INSPECTION AND MAINTENANCE PRACTICES.

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.

TO DEFEND ONE’S ACTIONS, DOCUMENT, DOCUMENT, DOCUMENT.

A successful defence of loss of balance claims is contingent on the occupier being able to demonstrate that they employed a reasonable system of inspection and maintenance that was being followed at the time of the loss. One facet of this system is maintaining a log book 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.

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.

Should an Accident Occour

  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, its suitability and general condition, particularly the sole.
  6. Assistance - note name, address, and phone number of anyone who provided assistance to the person directly after a fall.
  7. Comments and observations- note any comments made by injured person after a fall and to whom and record observations, including:
    • > Did they have difficulty traversing the sidewalk but continued anyway?
    • > Did they fail to take reasonable care for their own safety, having regard to the condition of the surface on which they walking?
    • > Did they wear prescription glasses or contacts? Was their prescription current?
    • > Did they take any medication (prescription or otherwise)?
    • > Did they suffer from vertigo or dizziness?
    • > Was the person accident prone? Have they had slip and falls in the past?
    • > Were they walking with assistive devices e.g. crutches, cane?

Playgrounds and Playground Equipment

Another frequent source of occupiers’ liability exposure is the school yard/playground and playground 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.

The Canadian Standards Association (CSA) publishes 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 is the standard which courts 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.

To prevent playground related injuries:

  1. Maintain grounds, play equipment and ground cover in accordance with standards.
  2. Ensure that equipment meets applicable safety design standards.
  3. Ensure that play equipment and games are age and size appropriate to students.
  4. Train students on proper use of play equipment, playing of games, and where to play.
  5. Supervision- provide adequate supervision to ensure that all play activities are conducted in a safe manner.
And as always, TO DEFEND ONE’S ACTIONS, DOCUMENT, DOCUMENT, DOCUMENT.

 

(REVISED 2015) E&OE
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