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Appeal Court Confirms Plaintiffs Must Beware Of Causation

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The Court of Appeal has rendered its decision on the appeal of Lane v. Alcock Enterprises  Limited et al., a slip and fall case in which the trial judge dismissed the injured plaintiff’s claim. The plaintiff slipped and suffered personal injury on a set of wooden steps and alleged negligence arising from the lack of non-slip treading on the wooden steps, and the lack of a handrail. The Court of Appeal upheld the trial judge in dismissing the claim.

On the issue of whether the absence of non-slip treading constituted negligence, there was conflicting expert evidence on the interpretation of National Building Code requirements, and the evidence of the plaintiff’s expert architect was thought not to be persuasive. Even if the absence of non-slip treading was a breach of the National Building Code, this was merely evidence of negligence, not proof of it, and it was somewhat unclear what this would have added to the safety of wooden steps. In any event, the trial judge’s determination that the absence of non-slip treading did not constitute negligence, was reviewable as a finding of mixed fact and law, and no extricable error could be found.

The trial judge found that the absence of a handrail constituted negligence but its absence was not shown to be a cause of the slip and fall accident and the plaintiff’s personal injuries. It had not been shown that but for the absence of the handrail, the injuries would have been avoided. This was a determination of factual causation and again the Court of Appeal was not disposed to interfere.

Plaintiffs ignore the issue of causation at their peril. The prevailing test is the “but for” test, and unless the judge is persuaded that the injuries would not have happened but for the negligence, then the plaintiff will not win. Plaintiffs beware.

It is unknown whether plaintiff's attorney will have to worry about set asides calculations for future medical care and submit them to Medicare for approval. Currently, there is no formal process of liability settlements for future medical care.
Posted by raven on July 13, 2009 at 01:51 AM

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