Personal Injury 101
Many first year law students are sitting in class this semester taking a course called torts. It is one of the more immediately interesting areas of law because the facts are stories of everyday life, stories of hope, tragedy, perseverance, fault and accountability. It is the branch of law dealing with non-criminal wrongs against a person. It is the law that governs product liability, motor vehicle collisions, and most situations in which a person is harmed by the negligence of others. It is the branch of law that, if prosecuted well, can make society safer and can protect the future of those who are injured.
In the coming months, we hope to educate the York Region reader about the ins-and-outs of personal injury law, in the hopes that people will better protect themselves from being injured, being sued, and being undercompensated.
For now, here are the basics.
When you hear in the news that someone has been sued, what does a person have to prove? Two things: negligence and damages. When is someone negligent?
First, the injured person must show that someone else had a responsibility for the injured person’s safety. At law, it is called a “duty-of-care.” While you are a passenger in a vehicle, for example, the driver is responsible for your safety. The driver owes you a duty of care. Not everyone owes a duty of care. It may surprise you to learn, that the average fellow on the street has no duty to rescue someone.
Although they may have a moral, ethical or religious duty, at law, a bystander cannot be blamed for failing to act, even if it is as simple as calling for help. There has to be a sufficiently close relationship between the injured person (plaintiff) and the person causing injury (defendant) to say that one owes the other a duty. Next, the injured person must prove that the actions of the defendant were a cause of injury. This can get tricky when there can be several potential causes. Was it the factory up-stream that caused the person’s illness, or did the person simply contract an unfortunate illness? Once the duty is shown, and causation is proven, then the injured person must show that the defendant’s conduct fell below acceptable levels. People are not perfect and our law does not expect them to be.
People are expected to act reasonably. What is reasonable? In a jury trial it all rests on the good conscience of six members of the community. Is it negligent for a ski hill to let kids go on a run with jumps and not have helmets for rent? What if the risk was obvious, but other ski hills were not renting helmets either? That is one of the debates in a case we have on the go right now involving a brain injured 10 year old. After proving negligence, the plaintiff must show the extent of his or her injuries, how they will affect him or her over the remainder of a lifetime, at work, at home, and in private life.
The ambition is to restore the person to the financial position he or she would have been if never injured, and then to compensate that person for pain and suffering. While some of these answers rely on the opinions of renowned medical experts, engineers, and economists, from my experience the most compelling evidence comes from a profound understanding of the person being represented, his or her character, achievements, ambitions, and needs to demonstrate at trial through friends, family, neighbors, co-workers, and the injured person. It is a remarkable area of law, that serves remarkable people.
*The article has also been featured on www.yorkregion.com