You slipped and fell while on someone else’s property, or perhaps another driver hit your vehicle. You have suffered injuries. But can you prove your injuries were the fault of the other person? Do you have a winnable personal injury case?
To successfully pursue a claim for negligence, your personal injury lawyer will need to establish four key elements.
First, it must be shown that the defendant owed the plaintiff (you) a duty of care. The duty of care is established by the common law (prior court decisions) and the relevant legislation.
For slips and falls, the relevant legislation in Alberta is the Occupiers’ Liability Act. For motor vehicle accidents, the relevant legislation is the Traffic Safety Act and associated regulations. Other provinces and territories have very similar legislation.
Second, it must be shown that the defendant breached that duty of care by falling below a standard of care. The required standard of care is also set out in the above legislation, in addition to prior court decisions.
In some cases it’s easy to show that the defendant breached the required standard of care. For example, if a car rear-ends another car, the driver of the second (rear) car is almost always found liable. Why? The standard of care expected of drivers, as set out in the Rules of the Road Regulation, requires them to leave a safe amount of space between themselves and the vehicle in front of them, to not proceed forward when it’s not safe to do so, to travel at a safe speed and to be aware of their surroundings. It is very hard to argue that you met this standard of care and yet still managed to drive into the back of another vehicle!
Third, to establish a claim for negligence, it must be shown that there was an injury to the plaintiff. Simply complaining of aches and pains is not enough. If you have not already done so, your personal injury lawyer will ask you to visit a doctor as soon as possible. Diagnosis of injuries and documentation of the healing process is essential.
Fourth, it must be shown that the injury was caused by the defendant’s negligence. If you seek immediate medical attention following the accident, and were healthy before the accident, this can be a straightforward process. Prior medical issues, delay in seeking medical attention and conflicting opinions of medical professionals can complicate matters.
The above is a very simplified explanation of how negligence is established in a personal injury case. Each case is different, and many factors can complicate matters. To know how the law applies to your particular circumstances, consult a personal injury lawyer.