Negligence, causation, and damages.
Personal injury claims come in all shapes and sizes, but every successful case rests on the same foundation: proving all three.
From your very first meeting with our personal injury lawyers in Toronto, we’re building that proof. Can we show a judge that the defendant was negligent? Did their negligence directly cause your injuries? Are your losses real and quantifiable? If the answer to any one of those questions is no, the claim won’t succeed, no matter how serious the harm.
Here’s what each element means, and what it takes to prove it.
Hurdle 1: Proving negligence
Proving negligence is a fancy way of saying that you can show the other side was to blame for your injuries. But blame alone isn’t enough — the court needs to see it in two distinct steps:
- Duty of care: First, you need to show that the defendant owed you a duty of care. The answer to this question and the ease of proving it will depend on the nature of the incident. In car accidents, this step is often straightforward, since all drivers are expected to take reasonable steps to avoid accidents and minimize danger to other road users.
- Breach: Once you’ve shown that a person owed you a duty of care, you must prove that they have breached that duty in order to establish negligence. In motor vehicle cases, this could involve alleged speeding or other broken traffic rules.
Hurdle 2: Proving causation
The idea here is to show a connection between the defendant’s negligence and the injuries suffered by the plaintiff.
The court settles questions of causation using the “but for” test, which essentially questions whether the plaintiff’s injuries would have occurred anyway, without the defendant’s negligence.
If the answer to the question is “yes,” the injuries would have occurred regardless of the incident; the claim fails the causation test. If the answer is “no,” you can proceed to the third hurdle.
Hurdle 3: Proving your damages
The goal of damages in a personal injury case isn’t to punish the defendant. The goal is to place the injured party in the same position they would have been in had the negligence not occurred through the award of monetary compensation
Damage claims tend to fall into the following buckets:
- Pain and suffering damages are awarded to compensate for the emotional and physical impact of injuries, including a person’s ability to engage in their usual, everyday activities, ability to engage in hobbies, and enjoy their family life.
- Incomes losses, including past losses that can be attributed to the injury, as well as loss of future income and future income-earning capacity.
- Care costs, including your ongoing and future treatment needs.
- Housekeeping and home maintenance expenses.
- Out-of-pocket expenses for anything related to the injury, such as travel to and from medical appointments, medication expenses, or other costs associated with treatments recommended by your medical service providers.
The evidence that decides your case
Evidence is the foundation of every successful personal injury claim. At every stage — from the initial investigation through to trial — the strength of what you can prove matters as much as what happened.
The following types are typically the most critical:
- On the scene: Police records, witness statements, and photographs of conditions at the accident site are often key to the court’s determinations on the issue of negligence. Many injured parties assume that the other side is at fault, but your personal injury lawyer will conduct a deeper investigation of the evidence to ensure the case is watertight before getting to trial.
- Medical records and documentation: Medical records and documentation from your family physician and other treatment providers often play a key role in decisions about causation and damages. Judges and juries may also lean on them when assessing your credibility as a witness, to see how well they align with your claims about the severity and impact of your injuries, as well as your commitment to following their recommendations.
- Expert reports: Expert witnesses are not just for use at trial. We also help clients select and retain financial and medical experts at earlier stages of the process to confirm the viability of a case or to support claims for damages, including for income loss or pain and suffering.
If you’ve been injured in an accident and are unsure if you have a personal injury claim, feel free to contact me or another member of our team of personal injury lawyers in Toronto at Edwards Pollard LLP.