It’s that time of year. Slip and Fall season is upon us in Ontario.
Before we get in too deep on this edition of the Toronto Injury Lawyer Blog, all of us here at Goldfinger Injury Lawyers would like to thank our readership for their support over this past year. We appreciate your positive and constructive feedback. In 2020, we hope to bring you more interesting to read legal content so that you can better understand the world of personal injury and disability law in Ontario. If there are any topics which you would like covered that we have yet to touch upon, send us an email to firstname.lastname@example.org with subject title “Blog” and we will do our best to accommodate your request. You can always dig in to our archives on the Toronto Injury Lawyer Blog page.
This week’s topic will cover slip and trip and falls. We always notice a spike in these sort of calls around this time of year. This year is no exception with the steady freeze, thaw, freeze, thaw weather we’ve had across the province, it’s kept everyone on their toes so to speak.
For starters, as of the time of preparing this entry for the Toronto Injury Lawyer Blog, you have two years from the date of loss to sue in the event of a slip or trip and fall on private property.
In the event of a slip or trip and fall on City or Municipal property, you have to give proper written notice within 10 days under the Municipal Act, 2001.
Failure to give 10 days written notice under the Municipal Act, 2001 may be a barrier to recovery. Ultimately, it will be up for a Judge to decide whether or not your case can continue. But missing that deadline simply gives the Defendant City or Municipality one additional weapon to defeat your claim.
After notice has been given, you then have 2 years from the date of loss to sue.
Statements from witnesses need to be taken. Video surveillance and CCTV footage needs to be preserved. Photos of the accident scene need to be taken. Maintenance records need to be requested and analyzed. Weather data from the days before and after the fall need to be looked at. Hospital and doctor records need to be requested and looked over. Property searches need to be requisitioned. All of the parties need to be put on notice so that they know what’s coming so that the insurer can conduct their own investigations and set their own reserves.
The longer the lapse before any investigations are completed, the greater the chance that valuable evidence for your slip and fall case will be compromised, or worse yet, lost and never able to be replaced. In the event this happens your personal injury lawyer will not be able to present the evidence necessary for your case to get the results you deserve. You want your personal injury lawyer to have the materials necessary to build your case to win. Without the materials in the form of evidence, your case will lack the foundation to maximize compensation.
It may seem counter intuitive to notify the insurer early on about your slip and fall case, and provide them with evidence of your fall and injury early on. If litigation is “war” then wouldn’t presenting evidence to your “enemy” better help them prepare for the pending attack?
Perhaps. But thinking of your case this way will not help you get the compensation you deserve.
By hiding information from the insurer, or not presenting it to them at an early stage will not help the insurer to set, or the properly set their reserves to evaluate your case.
If the insurer is caught by surprise, or doesn’t have the evidence they need to assess your claim, they may take a very hard line towards your case which will not foster resolution. They may also not budge your case accordingly (reserves), so that they don’t have enough money to pay out on your claim.
You may be able to win the amount you need to win (or more) at trial. Or you may get completely shut out at trial. You may win big at trial, only to lose big on appeal. You may win at trial, and then be forced to re-try your case on damages or liability or both because the Court of Appeal ordered a re-trial. The point is that the results at trial are uncertain. Conversely, there is no appealing a settlement negotiated freely between the parties. You may stand to win more settling your case prior to trial, then you can ever hope to gain should your case go to trial.
If your objective is to get compensation for your injuries, then putting the Defendant and its insurer on notice of your claim early on, and keeping them posted with respect to your damage, injuries, progression and recovery is in your best interests. Keeping the insurer out of the loop, or waiting on the last minute to retain a personal injury lawyer is only setting up your case to fail.
Another reason why you want to get an early start on your claim is to properly identify all of the parties responsible for the property and maintenance of the property where you fell. Often there are more than one set of Defendants in a slip and fall case. There are often more than one property owners, and more than one winter maintenance or property management company which need to be identified and put on notice. When there are multiple Defendants involved, they often point fingers and fight with one another with respect to who will bear the responsibility to pay for the damages. This fight can take a while and it’s often outside of the Plaintiff’s control. This is why it’s important for a Plaintiff to get an early start. This will allow the Defendants to sort out any coverage disputes so that we can properly target and identify the party which will pay out on the claim. Sometimes, it’s NOT as obvious as you may think at the outset of the claim.