Occupiers’ Liability Act Considered: Sometimes a Fall is Simply an Accident

Sometimes a fall is simply an accident. In a recent Ontario Superior Court decision, Nandlal v. Toronto Transit Commission, 2014 ONSC 4760, a judge held that it is not reasonable to expect a public transport occupier to continuously and immediately cleanup after its patrons if they leave debris on stairs.

Sarojanie Nandlal slipped and fell on a flight of stairs at a busy transport hub in Toronto for rapid transit trains, buses, and a subway. After getting off a train, she moved toward a stairwell that connects the rapid transit platform with the bus and subway platforms. She slipped and fell as she walked down the stairs, breaking her clavicle. She then brought an action for negligence against the Toronto Transit Commission (TTC), alleging that the TCC breached its duty of care under the Ontario Occupier’s Liability Act. The TTC responded by bringing a motion for summary judgment to dismiss Nandlal’s action.

Nandlal believed that she slipped on debris at the top of the stairs. She had seen debris in the transport hub that morning and had frequently seen debris there in the past. Yet, she did not see debris where she fell on the day of the accident. She did not know what she stepped on, but believed that she stepped on something. No witnesses could confirm seeing any debris on the stairs. The stairway tiles were non-slip and did not need repairs.

Nandlal needed to provide evidence that the steps were slippery and had debris. Even if she could establish this, her case would only succeed if the TTC failed to show that it took reasonable care to ensure that Nandlal and others were reasonably safe from the slippery steps.

Nandlal, however, failed to provide any direct evidence that there was debris on the stairs. She only provided a belief. Although she was alert and walked with care, she did not see any debris. Justice Perell found that she only offered a subjective rationalization. Seeing debris in other parts of the station that day and in the past does not lead to the inference that there was a debris hazard at the top of the stairs on the day of the accident.

Even if there was debris at the top of the stairs, Nandlal did not establish that the TTC failed to meet its duty under the Occupier’s Liability Act to keep the station reasonably safe for its patrons. The TTC had assigned a janitor to be on duty exclusively at the transport hub at the time of the accident. His tasks included responding to problems and performing a regularly scheduled cleaning of the area. The janitor had scanned the entire area for hazards requiring immediate attention at the beginning of his shift. He then began his regular maintenance and cleaning work.

Citing Attorney General v. Ranger, Justice Perell held that it is important for a court to use common sense when applying the Occupier’s Liability Act. Falls at bus terminals, airports, seaports, train stations, and subway stations occur without someone being responsible. Falls occur on stairs everywhere because they are just accidents. It was not reasonable or practicable to expect the TTC to continuously and immediately cleanup after its patrons who litter its premises, including its staircases.

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