Personal injury law is rather strange.
In all cases, the Plaintiff has been hurt or injured. Aside from being hurt or injured, the majority of Plaintiff share another thing in common.
The overwhelming majority of Plaintiffs have never been involved in a civil lawsuit before! That means that they have very limited knowledge about the Court system and how it works. They aren’t familiar with lawyers and legalese. They aren’t familiar with the law and how it works. But most importantly, it’s a message that these Plaintiffs aren’t litigious people. That means that they either don’t know how to sue, don’t want to sue, or want to stay as far away from the Courts as possible. Because let’s face it, the Courthouse is not a pleasant place to be. At the end of the day, the vast majority of Plaintiffs are legally unsophisticated accident victims who were in the wrong place, at the wrong time.
Yet, the Courts treat Plaintiffs who have never sued, never retained a lawyer, or stepped foot inside of a Courtroom like they should know all of the ins and outs of the law. And if they don’t know the ins and outs of the laws, large, highly sophisticated litigants such as insurers get to reap those benefits.
Here is a classic example which rubbed me the wrong way.
A recent slip and fall case came to my attention. It involved a serious injury to a Plaintiff while they were visiting a Provincial Park. They tripped and fell on a concealed retaining wall.
In the case, “There is no dispute that the Crown, as the occupier of the Park, owed Ms. X a duty of care under the Occupiers’ Liability Act.Ms. X alleges that the Crown failed to discharge its duty because there was a trip hazard, the trip hazard was concealed by overgrown grass, the Park had no inspection system, and the Park failed to provide warnings of the trip hazard. Inb response, the Crown says that Ms. X’s action is statute barred because she did not provide notice within 10 days as required by s. 7(3) of the Proceedings Against the Crown Act.”
Not to bury the lead, but the end result of this case (baring appeal) was that “Ms. X failed to provide notice to the Crown within 10 days as required by s. 7(3) of the PACA. Her claim is therefore statute-barred“.
I had a hard time wrapping my head around this finding given the facts in the case. It was found at trial that:
“Two women who came on the scene shortly after the incident notified Ms. X’s husband about her fall. Mr. G, a provincial park warden, arrived within a few minutes. Mr. G testified that he spoke with Ms. X and asked if she required medical assistance. Mr. G guided first responders and medical personnel to assist her and Mr. G stayed with her for the hour it took for her to be removed from the water.”
I have a hard time wrapping my head around the argument that the Crown did not receive sufficient notice given that it’s very own provincial park warden arrived to the scene of the accident within a few minutes; spoke with the Plaintiff; guided first responders and medical personnel to assist her; and stayed with Ms. X for the hour it took for her to be removed from the water. I mean, it’s not like an employee, agent or servant of the Crown was not there or had no knowledge of this fall. For goodness sake, Mr. G. was basically there just moments after the fall had happened, and orchestrated the rescue operation from the water!
The facts go on, which I believe, support the Plaintiff even further. The Court found:
“After Ms. X had been taken to the hospital, Mr. G spoke to two individuals who claimed to have witnessed the incident. Mr. G also spoke to Ms. X’s husband. Mr. G prepared a park complaint and occurrence report. Mr. G was also involved in the preparation of an incident report which, he testified, was faxed to the Ministry of Labour.”
The Court went on to find that 6 days after the trip and fall:
“a representative from the Ministry of Labour attended at the Park. Mr. G and Ms. Y testified that the purpose of the Ministry representative’s attendance was to advise if there was a hazard and if so, to make any necessary orders to rectify the hazard.”
All of these actions are taking place within the 10 day notice period. It’s very clear that the Crown had notice of a bad fall, or a potential hazard which they were investigating. I can’t see any prejudice to the Crown given all of the activity. It’s not like this incident popped out of thin air, years later.
By the time that the Plaintiff regains her strength, a sense of normalcy in her life, and the courage to retain a personal injury lawyer, the 10 day written notice period has elapsed. Approximately 5.5-6 months from the date of the fall, the Crown receives formal legal notice of the Plaintiff’s intention to pursue the claim.
The Court goes on to mention that “”to a lay person, the completion of an Incident Report would seem like notice to the Crown.“. I would agree with this statement. I also stand by that 100/100 non lawyers would agree with that the completion of an Incident Report (and the other workup) would seem like notice to the Crown. It’s not like the Crown didn’t know what was going on. Unfortunately, the Court did not agree and stuck to a very rigid interpretation of the law.
So, all of that workup by the Crown shortly after the incident, the incident reports, the witness interviews etc. did not count for proper notice under the Act. The Crown is able to escape liability for this fall based on a technicality, which in any other circle likely wouldn’t fly. I doubt this sort of thing encourages early reporting of accidents. All it does is encourage people to lawyer up right away and allows for sophisticated litigants to escape any and all responsibility for their potential negligence based on a hard and fast interpretation of the law which is clearly intended to protect institutional defendants and not everyday people.