Money for Injuries: The Nature of a Personal Injury Claim

Imagine that you are walking down the aisle in a big box store when all of a sudden a shelving unit collapses and the items on the shelves tumble onto you. Your leg is broken.  Or perhaps you were walking carefully in a store or in a parking lot and you trip on some protrusion thereby falling forward onto your hands breaking both wrists or elbows.  Or what if you are a passenger in a car when the driver made an unsafe left turn and you were t-boned in an intersection thereby suffering catastrophic injuries.



Mikolaj Grodzki
Partner at Quinn Thiele Mineault Grodzki LLP

The foregoing are just three rather common ways that people suffer rather serious injuries.  There are of course countless other ways that people can be hurt and those other ways may,like these exampales, also entitle them to compensation.  The common thread, in each of these scenarios, is that someone, other than the injured person, was negligent and thereby caused the person to suffer the injury.

The area of law that deals with personal injury cases is called "tort" law.  The word tort derives from the Latin torquere.  It is defined as a private or civil wrong or injury ... as a violation of a duty imposed by general law or otherwise upon all persons occupying a relation to each other.   Where there is a tort there is always a violation of some duty owing to the victim and generally speaking the duty must arise by operation of law.   From these defining words comes the concept of negligence and it is defined as consisting of the existence of a legal duty owed to the victim by the perpetrator, a breach of that duty, a proximate causal relationship between the breach and the plaintiff's injury, and damages.

THE POINT OF TORT LAW

Hopefully the definitions provided help you understand that Tort law concerns itself with injuries caused by people/companies/legal entities against other people in circumstances where the people who are doing the injuring (intentionally or through inadvertence or negligence) had a duty to protect or behave in a way or do something that would prevent the injury to the victim. 

The law recognizes such situations being circumstances that society has an interest in addressing through the legal system.  One of the best descriptions I have ever heard on the purpose of tort law that speaks to why it exists comes from C.A. Wright in Introduction to Cases on the Law of Torts (4th Edition 1967) where he states: 

 Arising out of the various and ever increasing clashes of the activities of persons living in a common society, carrying on business in competition with fellow members of that society, owning property which may in any of a thousand ways affect the person or property of others---in short doing all the things that constitute modern living---there must of necessity be losses, or injuries of many kinds sustained as a result of the activities of others.  The purpose of the law of torts is to adjust these losses and to afford compensation for injuries sustained by one person as the result of the conduct of another.

ARE ALL INJURIES COMPENSABLE?

A further way to appreciate the purpose of Tort law is to understand that not all injuries that a person suffers are compensable.  If a person falls down their own stairs because they did not shovel, or crashes their own car because they fell asleep at the wheel, or in some other way suffered misfortune through their own fault, society does not have a system for delivering compensation (for those injuries) to that person even though the injuries sustained may be quite serious.  What this fact highlights is that tort law exists to compensate injuries caused by others where the victim is not at fault or not entirely at fault for the incident.

THE FIRST CONSIDERATIONS FOR PERSONAL INJURY LAWYERS (Tort Lawyers)

Now that you have a working definition of tort law and understand the concept of negligence, you will appreciate that lawyers who work for injured persons must always analyze the context of the injury.  They have to try to determine if there is a "tort" present in the fact scenario and whether there is anything in the facts that the law recognizes as being compensable.  No matter how tragic or sad a case may be, if the injury arose out of circumstances where there is no "tort" then there is quite likely no case to pursue.

You would think that the question of whether there is or isn't a case would be immediately obvious.  In some situations that is true and it is quickly clear that there is, prima facie, a case (for example:  a passenger in a car accident in Ontario is virtually guaranteed to have a claim).  However, there are many situations and unusual circumstances that call into question whether there is a claim or not or whether the facts are such that a duty of care and a breach thereof can be established in the circumstances (for example: a person walking along in a store falls and breaks a leg but there is no explanation for how the fall happened).

In Ontario, there are also many laws that limit liability and claims against persons who would otherwise be liable for injuries.  An obvious example is the Workplace Safety Insurance Act (WSIBoard) where certain employers are immune from being sued for injuries sustained by their employees or the employees of other employers.  An example of limiting the right to sue is in the motor-vehicle accident law where the right to sue has been restricted to cases that are serious enough to meet a certain legal threshold.  Those people who suffer injuries in an accident, and who were not at fault, may find that they can not sue because the law says their injuries are not serious enough.  Interestingly, car insurance law also provides some health and financial benefits to injured persons involved in a car accident without needing to prove a "tort"--these are called accident benefits.

The point, which I hope you understand, is that the lawyer's first task is to determine if the injured person suffered their injuries in the context of a tort that the law recognizes.

THE CASE ITSELF

The articles that will follow in this blog will discuss how a case is developed and some of the considerations that go into pursuing a case.  If you have read this far, and are looking for specific answers I invite you to post comments with general questions.  I will be happy to answer them, in a general sense, without actually providing specific legal advice.  Blogs and articles like this will never be a substitue for actual legal advice.

The best news is, if you've read the first article in this blog you will know, getting legal advice for personal injury matters is fairly easy.  Given the advent of contingency fees there are many lawyers who are quite happy to provide you with free first consultations to answer your questions and to gain an insight into whether or not you have a case.

Mikolaj Grodzki
Ottawa Lawyer
www.ottawalawyers.com