Personal Injury 101: Negligence and Damages
It’s that time of year where many first year law students are just about to finish 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. Torts is the branch of law dealing with non-criminal wrongs against a person. It 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.
One of the things we like to do at BolandHowe is to educate the public about the ins-and-outs of personal injury law. Our goal? We hope that with this knowledge you will better be able protect yourself from being injured, sued, and undercompensated.
Personal Injury 101
When you hear that someone (the defendant) is being sued, what does it mean? And what what does the person initiating the lawsuit (the plaintiff) have to prove? These cases rest on two elements: 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, according to the 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. Let’s take for example an illness caused by toxic contamination. The question at hand is whether it was the factory up-stream that caused the illness, or whether the person simply contract an unfortunate illness?
Once the duty is shown, and causation is proven, then the plaintiff must show that the defendant’s conduct fell below acceptable levels. The law does not expect people to be perfect, but they are expected to act reasonably. Which begs the question: What is reasonable? In a jury trial it all rests on the good conscience of six members of the community.
Example from a recent case Richmond Hill, Ontario case involving a brain injured 10-year old skiier: 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?
The goal of damages is to restore the injured person to the financial position he or she would have been if never injured, and then to compensate them for pain and suffering. Therefore, 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.
While some of these answers rely on the opinions of medical experts, engineers, and economists, the most compelling evidence comes from a profound understanding of the person being represented, his or her character, achievements, ambitions, and needs. These factors are all demonstrated at trial through friends, family, neighbours, co-workers, and the injured person’s own testimony.
Torts is a remarkable area of law that serves remarkable people.