Slip and falls on hospital property in winter conditions are a common source of claims. For protection from liability, the hospital will have a written contract in place requiring its snow removal contractor to defend and indemnify the hospital should a claim arise. In recent years, however, there has been a proliferation of litigation against snow and ice removal contractors, precluding some from adequate insurance coverage.
On December 8, 2020, Bill 118 (Occupiers' Liability Amendment Act, 2020) (Bill 118) received Royal Assent. This amendment to the Occupiers' Liability Act includes changes to claims resulting from personal injury caused by snow or ice.
It introduces a requirement that written notice must be given within 60 days of the incident, setting out the date, time and location of the occurrence. This notice must be personally served on the occupier or sent by registered mail. Prior to this amendment, the usual two-year limitation period applied.
The notice must be served on at least one occupier. As a result, it may be either the hospital or contractor. Any occupier that receives notice must provide it to all other relevant parties.
The practical implication of this notice requirement is that it will allow a better opportunity to investigate the incident, including staff and witness interviews and preservation of any activity logs and surveillance footage.
Failure to give the required notice does not apply to situations involving death, or if there is a "reasonable excuse" for not having provided notice and there is no prejudice to the defendant. The court will be required to exercise judicial discretion on what constitutes a reasonable excuse and prejudice.
When these changes come into force, they will have implications for actions commenced for slip and falls involving ice or snow. When a claim is served, as a first step, hospitals should review whether notice was delivered within 60 days of the incident. We will advise when these amendments come into force.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
