Preparing for Discovery in a Slip and Fall Case

The fall itself, in far more detail than you expect

Most of the examination is spent on perhaps four seconds of your life. Where you were going and why. Which door you came out of. What you were carrying, and in which hand. What you were wearing on your feet. Where you were looking. Whether you were talking to anyone. How many steps you took before you went down. Which part of you hit the ground first.

None of this is hostile. Occupiers' liability turns on whether the occupier took reasonable care in the circumstances, and the circumstances are built out of exactly these details.

Identifying what you slipped on

The hardest question in most of these cases is the simplest one: what caused you to fall. Many people genuinely do not know. They were upright, then they were on the ground.

If you did not see ice before you fell but felt it under your hand afterward, say exactly that. If someone told you the walkway had been slippery all morning, say who and when. What you must not do is construct a mechanism you did not observe, because the defence will test it against the weather records, the maintenance logs and the photographs, and a reconstructed answer tends not to survive that.

Notice, and when you first reported it

Ontario law imposes short deadlines in these cases that have nothing to do with the two year limitation period. Where the injury was caused by snow or ice, written notice generally has to be served on the occupier or the snow removal contractor within 60 days, with only narrow exceptions. Where the fall was on a municipal sidewalk or road, a separate and much shorter municipal notice period can apply.

Your lawyer will have dealt with this long before discovery. What comes up on the day is the factual timeline behind it: when you first told anyone, who you told, whether you filled in an incident report, whether you went back to look, when you first took photographs, and when you first spoke to a lawyer. Answer those precisely, because they feed a legal argument that runs in the background.

Your footwear

You will be asked what you were wearing, what condition it was in, the tread, the heel, whether it was appropriate for the weather, and where those shoes are now.

Keep them. Do not clean them, wear them out, or throw them away. Footwear is real evidence in these cases and its absence gets noticed.

Whether you had been there before

Expect questions about prior visits to the property, whether you had noticed the condition before, whether you had complained about it, whether there was another route available, and whether you were paying attention.

These go to contributory negligence, the argument that you share responsibility for your own fall. Familiarity with a property cuts both ways, so answer without trying to guess which way a given answer helps. Guessing at strategy is how witnesses tie themselves in knots.

What the case usually turns on, and it is not your evidence

Slip and fall cases are frequently decided on documents you have never seen: the snow clearing contract, the contractor's service logs and invoices, inspection and maintenance records, incident report forms, environmental weather data for that hour, and any security video.

Your lawyer will pursue all of it, and will examine a representative of the occupier and the contractor about it. Your job at discovery is to give an accurate account of your own experience. It is not to prove the case. Resist the urge to argue about what the property owner should have done.

Your health before the fall

As in any injury claim, your prior medical history is produced and you will be asked about it. Previous falls, balance or mobility problems, medication that affects steadiness, prior injuries to the same area, and any earlier claims.

This feels intrusive and it is legitimate, because the defence is entitled to test whether the fall caused what you say it caused. Answer accurately rather than defensively. The records are already in the room.

How to prepare

• Return to the scene in your mind, in order. Where you came from, the route, the last few steps.
• Locate your photographs. Anything taken that day or soon after, with the original timestamps intact.
• Produce the shoes. Give them to your lawyer if you have not already.
• List who you told. Staff, security, family, your doctor, and roughly when.
• Be candid about prior falls and mobility issues. Your lawyer can deal with a known weakness.
• Do not rehearse a mechanism. Describe what you actually perceived, including what you did not see.

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