When an injured person makes a claim that their injury happened because of the negligence of another, they (their lawyer) must be able to prove this is the case before they can collect damages from another party. Personal injury law in Toronto sets out five clear standards on how to prove negligence.
Standard #1 – “duty of care”
The concept of the duty of care is that people must not harm others either through their actions or omissions. The plaintiff must demonstrate that the defendant had a legal obligation toward the defendant.
Standard #2 – “standard of care and its breach”
The plaintiff must demonstrate that the defendant had a specific standard of care that they breached. This standard would be that of any reasonable person. Examples of a breach of standard of care might include things such as following too closely in the case of a car accident, or having clutter on the ground in the case of a trip and fall accident.
Standard #3 – “cause in fact’
Negligence alone is not cause for a lawsuit. In addition to proving that the defendant was negligent, the plaintiff must demonstrate the defendant’s negligence was the cause of the plaintiff’s injuries. For example, if the plaintiff argues that the defendant was negligent in not using his turning signal, the defendant may argue that this was not the cause of the accident, but rather that the accident was caused when the plaintiff failed to stop at a stop sign.
Standard #4 – “remoteness of damages”
Additionally, the plaintiff must be able to show that their resulting injuries were a foreseeable consequence of the defendant’s negligence and therefore that steps should have been taken by the defendant to avoid this.
Standard #5 – “an actual loss”
In order to collect any damages, the plaintiff must have suffered an actual loss.
Question: What defences might the defendant use?
If your lawyer has been able to prove that it was indeed the negligence of another party that caused your injury, you can be prepared to hear one or more of the following defences:
- Contributory negligence – in other words, the defendant may argue that you were partly to blame for your injuries. If this is proven your benefits will be reduced by the percentage to which the accident was your fault.
- Voluntary assumption of risk – in other words, they may argue that you knew the risks of a given task and decided to do it anyway.
- The plaintiff had the same limitations prior to the accident.
- The plaintiff is not consistent with her or his reporting of the symptoms thus cannot be trusted.
- The plaintiff has not kept record of all of the symptoms and thus unreliable historian of the symptoms.
- Those symptoms are no limiting the plaintiff doing his or hers daily activities or to vacation, travel.
- The plaintiff’s symptoms and limitations are not serious or permanent to meet the legal threshold or to surpass the $30,000.00 deductible in motor vehicle actions, which is kept by the insurance company of the negligent party.
Personal injury law can be complex and it takes a trained lawyer to know how best to help an injured person. Proving negligence is not always easy but it is often essential in helping you to get properly compensated for your injuries.