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INJURYwise

Proving liability in an injury claim

This column is the first of three for how to prove your personal injury claim and while this trilogy doesn’t contain the excitement of hobbits, elves or a ring for taking over middle-earth (some Lord of the Rings excitement for you J.R.R. Tolkien fans), the information might be considered “precious” if you have an injury claim you need to prove. Now, I understand that initially this may seem like a silly thing. After all, if you are injured and your doctor says you were injured as a result of the accident, isn’t that enough? The short answer is “no.”

There are three things, or if you prefer, 3 rings you have to jump through 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 “Liability.”

First and foremost, no matter how seriously you are injured, you are only going to be entitled to full compensation if someone else is liable (legally at fault) for your injuries. If you are the cause of your injuries, there is no one to sue, or the potential defendant is not liable, then you will not be entitled to compensation.

In some cases, proving someone else is at fault can be relatively easy, such as where the other party admits to being at fault or in a typical rear-end collision, but it can also be very difficult, such as the typical medical negligence case. If there is any dispute, then you are going to need to prove that the other party is liable for your injuries.

If you are partially at fault (contributory negligent), then you can still pursue your claim, however the amount of money you are entitled to at the end of the claim, will be reduced by the percentage you are deemed to be at fault.

How you prove liability will ultimately depend on the type of case (i.e. motor vehicle accident, hit and run, slip and fall, assault, product liability, medical negligence etc.) as well as the specific circumstances of the case. You will need to prove “what is the standard of care?” and that the other party involved breached that standard of care. In some cases the legislation helps us determine this; in others we only have case law (previous decisions made by the courts) to assist us. For motor vehicle accident cases it’s usually pretty simple to determine the standard of care, we look to the rules of the road which are summarized in the Motor Vehicle Act. However, other cases are not so simple. For example, in a slip and fall case the Occupier’s Liability Act says that an occupier of premises owes a duty, to take care, that in all the circumstances of the case, a person will be reasonably safe using the premises. What is considered “reasonably safe” depends on many factors and we have to look at the case law to see how the courts have interpreted this term in different situations.

Evidence that is often helpful in proving liability includes: general information about the defendant(s), a written statement by you that was made shortly after the event, statements from other witnesses (often this is the most critical evidence), photographs of the accident scene, photographs of vehicles or other objects involved, photographs of injuries, drawings of the accident scene, the police file (car accident and assault cases), vehicle repair estimates, clothing worn (for pedestrian or cycling cases to determine visibility), footwear (slip and fall cases), video surveillance footage if available, and in some cases, evidence of industry standards.

If you hire a lawyer to assist you with your claim and your lawsuit is filed in Supreme Court, your lawyer will also have the ability to require the defendant to produce certain documentation as well as cross-examine the defendant prior to trial in a process called an examination for discovery. This is a question and answer session and a great opportunity to test the credibility and reliability of the defendant’s version of events. It can go a long way towards helping prove liability in your favour.

In complicated cases, your lawyer may also hire an expert to assist in establishing liability. For example, in complicated motor vehicle accident cases engineers may be hired to prepare accident reconstruction reports. In slip and fall cases engineers may provide expert evidence on things like industry standards, building code requirements or friction (slipperiness of a particular surface). In medical negligence cases other medical specialists are almost always needed to say whether the treatment provided fell below the standard of care and whether the treatment caused the injury.

In summary, the first obstacle in any personal injury claim is proving liability. If you cannot prove someone else is legally at fault for your injuries it will not matter how badly you were injured or what damages you have suffered, as you will not have a valid claim.

[Note: if you are 100% at fault in a motor vehicle accident in BC, then in most cases you will still be entitled to some very basic accident benefits from ICBC called Part 7 or No Fault Benefits (For further information see previous articles “ICBC Accident Benefits”, “Court Quashes ICBC Policy” and “Value of Real Housewives”).]

 

*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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