It’s rather chilly in Ontario, with temperatures getting around the negative double digits.
When it gets this cold, ice forms and hardens significantly, making for difficult walking conditions on both public sidewalks, and private driveways and walkways.
Despite the poor walking conditions, there are still some daredevils out there who defy the cold temperatures and dare to wear sandals, flip flops, crocs or other footwear not associated with winter conditions.
So, what happens after a slip and fall case in Ontario? How are these cases started and built up by personal injury lawyers in order to get their clients the compensation which they deserve.
Cases are built upon facts and evidence.
This of these as the primary ingredients to a successful lawsuit. Without evidence, the case is going nowhere fast. You personal injury lawyer cannot simply conjure up evidence out of nowhere. And neither can you. Evidence in favour of your case either exists, or it does not. Some evidence is easy to gather. Other forms of evidence are not, and may need some form of higher power (like a Judge’s Order) to compel production.
Here’s an example of evidence which is easy for your personal injury lawyer to gather and to produce. Things like:
- Clinical Notes and Records from the Hospital you attended after your slip and fall accident
- Clinical Notes and Records from your Family Doctor or Nurse Practitioner, or the Walk In Clinic you attended after your slip and fall accident
- Clinical Notes and Records from your Physiotherapist, Massage Therapist, Chiropractor or Occupational Therapist who you saw after your slip and fall accident
- Pre-Accident and Post Accident tax returns which establish your base line pre-accident income, to show that you sustained a loss of income as a result of your slip and fall accident
- Your Pre-Accident and Post Accident decoded OHIP Summary showing the doctor(s) you saw; and the frequency you saw those doctors before your slip and fall accident vs. the doctor(s) you saw, and the frequency you saw those doctors post slip and fall accident
- Your employment file
- Your ODSP File
- Your CPP File
- Your short term and/or long term disability benefits file
- Your collateral benefits file
- Your LHIN file
- Photographs of your injuries, along with the ice patch which caused your fall (if you took any such photos and preserved them)
- The ambulance call report, or the records from the police or fire department if they came to the scene of the accident to assist
- Weather records for the days prior to your fall, the date of loss, and the days post slip and fall accident
Here is an example of evidence which your lawyer may not be able to access as easily. Obtaining this evidence, if it exists, may require the co-operation of the Defendant; or an Order for a Judge to compel production:
- The winter maintenance records and winter maintenance contract (will be in possession of the Defendant and they will need to produce them one way or another if they exist)
- CCTV or video footage of the winter maintenance work performed before the fall; and the CCTV or video footage of the fall itself, and then aftermath of the fall. This CCTV or video footage may exist, or may not. It may also belong to the Defendant property owner, or it may belong to a neighbour who has absolutely nothing to do with the slip and fall case. There is no legal obligation for an unrelated non-party to hand over documents in relation to a personal injury case. The unrelated non-party has to hand over what they have only by way of Court Order.
- Body camera footage from the police, or dash cam footage from a first responder. These actors have nothing to do with the slip and fall itself; and despite being first responders, they have no legal obligation to hand over any footage they have (even though it may be relevant). But, they will do so by way of Court Order
- Internal investigation records/notes of the slip and fall incident conducted by the Defendant, or their insurer
Getting these records; whether they are the hard to get records or the easier to get records always takes time. And what’s contained in those records is always a mystery. What do I mean by that.
More often than not, a Plaintiff may say one thing to a doctor; but what the doctor records can be completely different. It’s a like a very bad (yet important) game of broken telephone. What’s recorded in those records is crucial towards making, or breaking, a successful personal injury case.
This is because a Plaintiff will always advocate for themselves.
The same is true for a Defendant.
The testimony of the Plaintiff and of the Defendant will often neutralize itself at trial. The exception is where one party; either the Plaintiff or Defendant is so unreliable or completely lacks any credibility.
So, based on the assumption and anticipation that a Plaintiff will see events one way; and the Defendant will see things the opposite way; the Court will have no other choice but to carefully examine and weigh the evidence from the parties which have no stake in the litigation. This is where they examine the records from the non-parties to the litigation and see what they have to say about the slip and fall and the ensuing injuries to the Plaintiff.
If the Plaintiff’s doctor does not report any injuries to the Plaintiff in his/her clinical notes and records; yet the Plaintiff says the opposite at trial; then something fishy is going on. Either the doctor isn’t doing his/her job in properly documenting the Plaintiff’s pain complaints and reported injuries; or the Plaintiff did not report those injuries and perhaps they are a complete fabrication.
If this happens, the Court will take everything which the Plaintiff says with a large grain (or mound) of salt. The Plaintiff’s case; whether rightly or wrongly, will be tainted. Getting the Plaintiff the results which s/he deserves; or then results which s/he believes which they deserve will be a tougher task. This is why evidence matters in all personal injury cases; not just slip and fall cases.