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INJURYwise

Proving causation in an injury claim

This column is the second of three, for how to prove your personal injury claim. I like to think of these columns as an epic PI trilogy – the likes of the epic sci-fi trilogy: Star Wars, only this trilogy is for fighting the insurance empire. As mentioned in the first column, there are three things you need in order to prove your injury claim: 1) Liability; 2) Causation; and 3) Damages. In essence, someone else has to be legally at fault for your injuries, your injuries must have been caused by the accident (not some pre-existing condition or post-accident event); and as a result of those injuries, you must have suffered some compensable damage (such as pain and suffering, wage loss, out of pocket expenses, etc.). In this column, I deal with “Causation.”

A defendant only has to compensate you for injuries you can prove were caused by the accident. The good news is that causation does not have to be proven with scientific certainty. The burden of proof for causation is on a balance of probabilities. In other words, you only have to prove that the accident probably caused the injuries, or that it is more likely than not the cause of your injuries (51% chance that the accident caused the injuries).

There is no doubt that if you lose a limb or became paralyzed as a result of an accident then proving what injuries were caused by the accident becomes an easy task. However, it is not always so straightforward. You may have pre-existing injuries or medical conditions, you may have been involved in other accidents, or your symptoms may not appear or get reported to your physician for several months after an accident and it becomes difficult to tie those symptoms to the accident in question. In other cases, the accident is minor and it is difficult to link the extent of the injury to the accident.

It is important to understand that a defendant is only required to put you, the plaintiff back in the same position you would have been in if the accident had not occurred. No better, no worse. As a result, what is often disputed is the state of your health at the time of the accident and what it was going to be regardless of the accident. So, you need to look at what your situation would have been like if the accident had not occurred and compare it to your situation as a result of the accident. It is the difference between these two positions which is compensable and is what you need to prove.

In many cases, pre-existing injuries are aggravated as a result of an accident. It is important not to minimize or deny pre-existing conditions as there will be records and denial will only hurt your credibility down the road. You are entitled to be compensated for an aggravation of a pre-existing condition.

So, how do you go about proving the accident caused your injuries? In most cases, causation is proven with the assistance of your doctors, typically through production of their clinical records, test results, forms they fill out for ICBC (i.e. CL-19 Report) and medical-legal reports. In addition, if you case goes to trial your doctors will also testify. Causation can also be proven through your own notes, photographs of injuries, documentation and testimony of other caregivers such as your physiotherapist or massage therapist, evidence of family, friends and co-workers, and in some cases expert evidence of biomechanical engineers and other medical specialists. In essence, a judge or jury will look at all the evidence and decide whether the accident probably caused your injuries or whether they were caused by something else.

To help eliminate arguments by the defence (whom I like to refer to as the “Dark Side”) that your injuries were not caused by the accident, it is important to seek medical treatment as soon as possible after the accident. In more serious cases this means going to emergency at the hospital. However, if going to the hospital is not warranted, it is still important to attend a walk-in-clinic or see your doctor as soon as possible after the accident so that your injuries are documented. You will want to make sure you report all the symptoms you are experiencing as soon as possible. Every day that goes by that you do not seek medical treatment after your accident, hurts your claim. Further, if symptoms are not documented within a reasonable time frame after the accident, it will become harder and harder to link them to the accident. Regular follow-up is also important.

In conclusion, proving causation is essential for a successful personal injury claim. Attention to detail is important. If you cannot prove that the accident caused your injuries on a balance of probabilities, you will not be entitled to compensation. May the force be with you!

 

*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.



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About the Author

Keri Grenier is an experienced personal injury lawyer based at Murphy Battista LLP's Kelowna office. She also holds a B.A. in psychology. Her practice focuses on helping people who have been injured in motor vehicle accidents or due to the negligence of others.

In her column, Keri provides practical information about personal injury claims in a format that is simple and easy to understand.

Email: [email protected]

Website: http://www.murphybattista.com
 

Twitter:  http://twitter.com/KelownaLawyer



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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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