PERSONAL INJURY CASES 101: THE ELEMENTS OF A PERSONAL INJURY CASE

Personal injury cases vary from case to case, and the elements of a case that must be proven may differ as well. For instance, a case may require “gross” negligence as compared to simply the negligence standard. Recreational trails may have a much lower standard of care than a sidewalk, for example.

This overview does not get hung up on the niceties of personal injury law but rather provides a general idea of what a plaintiff must be able to prove in order to advance a claim. Generally speaking, most negligence cases require proof of a duty of care, a breach, causation, and damages.

If you have been injured in an accident, it can help to understand these concepts before you speak to insurance companies or make decisions that affect your claim. Whether the incident involves a car accident, a fall, or another event, the legal analysis usually comes back to whether someone owed you a duty of care, whether there was a breach of duty, whether that breach caused the harm, and what losses flowed from it.

In Ontario, these building blocks are often what determine whether a claim resolves efficiently or becomes a dispute.

THE DEFENDANT MUST HAVE A DUTY OF CARE

A duty of care may become a contentious issue depending on the tort claim advanced. In some cases, it is a non-issue as it is so clear that a duty exists. In motor vehicle accidents, for example, all drivers owe other drivers a duty of care, and plaintiff and defense counsel will not be disputing such an assertion.

A duty of care is an obligation that is imposed on an individual or entity requiring them to adhere to a specific standard of care that, if not met, could result in foreseeable harm. This element is the bedrock for a negligence claim, and once it is established, it can help advance a plaintiff’s claim.

Foreseeability and reasonable care

Duty often turns on foreseeability: could the defendant reasonably anticipate that someone might be harmed if certain precautions were not taken? Where the risk is predictable, the law expects reasonable care in the circumstances, and the facts will often determine what that standard requires in the moment.

While a motorist clearly owes a duty to other motorists and pedestrians, a less obvious example may be whether a homeowner owes a duty of care to a trespasser to protect against an unsafe hazard, such as a large ditch, causing one to fall and break their leg. Depending on the intricacies of the facts, the law can cut both ways.

The Doctrine of Allurement, for instance, may hold homeowners liable for creating attractions that are dangerous for children, albeit those minors were trespassing at the time.

THE DUTY OF CARE MUST HAVE BEEN BREACHED

When the duty is breached by an individual or entity causing harm, the defendant may be liable for the damages the negligence has caused to the victim. The defendant breaches the duty when they fail to exercise the required standard of care.

Like the above, an example will illustrate best. If a homeowner has left their garden hose over the walkway to the front door, and a postman trips on it, it may be a contentious issue as to whether the homeowner breached the duty of care by leaving that trip hazard over the pathway. Various factors may influence a jury to sway one way or another, such as the time of day or the visibility of the house.

Breach of duty and connecting the injury

In practical terms, a breach of duty asks whether the defendant acted below the required standard. In a car accident, this can involve a driver who was distracted, speeding, or otherwise negligent. In premises cases, it can involve hazards that were not addressed within a reasonable time or warnings that were not adequate for the circumstances.

Even where a breach of duty is proven, the plaintiff still has to show causation: that the breach actually contributed to the injury and the losses claimed. Medical records, timelines, photos, and witness testimony can become important when the defendant argues that the injuries are unrelated, overstated, or explained by another cause.

DAMAGES

Regardless of the other elements, if you are unable to prove that you have been harmed in any way, then, of course, there is no personal injury claim. A plaintiff must be able to prove some form of harm, whether physical, psychological, emotional, or to property.

Damages must be supported by evidence.

Damages can include treatment and rehabilitation expenses, lost income, out-of-pocket costs, and the day-to-day impact the injury has on your life. In serious matters, such as a spinal cord injury, damages may also involve long-term care needs and the costs of adapting a home or vehicle.

Because claims are often closely examined, keeping clear documentation can make the difference between a fair resolution and an ongoing dispute.

A SKILLED PERSONAL INJURY LAWYER CAN HELP MAKE A COMPELLING CASE

While you may feel like all of the elements of your case are met, the legal jurisprudence and legislation may affect your case in ways that the layman may not be aware of or understand. Contact our law firm for a free, no-obligation evaluation of your case, and we will provide our professional feedback on your claim.

When negotiation is not enough

Many claims resolve through negotiation, but there are situations where a personal injury lawsuit is necessary to obtain disclosure, test the evidence, and move the matter forward.

Bernstein Law Group offers a free consultation and serves clients throughout Southern Ontario, including Milton, Oakville, Dundas, Brantford, Stoney Creek, Burlington, Ancaster, and Cayuga. Reach out for a free consultation so we can assess your claim and provide practical next steps.