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Accident fault - FAQ

If you’ve been hurt in an accident and plan to file a lawsuit, it’s crucial to determine who is liable and what you’re entitled to. Here’s what you need to know.

What is negligence?

Most personal injury lawsuits are based on a claim of negligence. Legally, this refers to reckless or careless conduct that creates an unreasonable risk of harm. For example, if a driver runs a red light and hits you, you could sue them for negligence. 

  • Did the defendant owe a duty of care to the plaintiff? For example, a driver owes a duty to other drivers and pedestrians to drive in a safe and careful manner.
  • Did they fail in that duty? Sticking to the driving example, were they drunk, speeding, texting or doing something else that was careless or reckless?
  • Did you suffer harm as a result of the defendant’s conduct? Courts use what’s called the “but for” test, where the defendant has to show that but for the defendant’s negligence, they wouldn’t have been harmed.
  • How remote are the damages? This is also known as foreseeability, as in whether it could be reasonably anticipated that a certain action could end up causing harm.
  • Did you suffer damages? This would include physical injuries, contracting a sickness or disease, emotional trauma or loss of property.

With respect to damages, a plaintiff must show they suffered an “actual loss.” If you’re hit by a car but perhaps just get a few scrapes, you don’t miss work, incur medical expenses, or otherwise suffer economically, there’s no actual loss.

What kind of damages can I sue for?

If you can show that the harm led to loss of income, medical expenses, or pain and suffering, you can sue for damages. Punitive damages are sometimes awarded as well although Canadian courts are typically conservative with punitive awards.

Can I sue third parties? 

This goes back to foreseeability and what the courts call proximity. In other words, how closely related is a defendant? For example, if you’re injured by a drunk driver, can you also sue the bar where they got drunk? This depends on whether the bar staff could have foreseen the drunk patron driving. Anyone named in your lawsuit must have a reasonable connection to the relevant events.

I was in a car accident. How do I prove who’s at fault? 

In car accidents, insurance companies will conduct their own investigation to determine who is at fault or to what degree.

As in any negligence claim though, you can help your case by gathering as much evidence as possible. Take pictures of the damages and the scene, talk to witnesses, and try to obtain a copy of the police accident report. 

If you disagree with your insurer’s fault assessment, you can attempt to dispute it. Talk to your claim handler and seek legal advice if necessary. In some cases, people have sued their insurance company over fault determination. 

What is no-fault insurance?

Each province has a no-fault insurance system for automotive accidents, which basically means each driver deals with their own insurance company. The legal implication is that each province’s laws also restrict whether you can sue another driver and for how much. 

Can I get damages even if I am partially liable?

Yes. Accidents are not always entirely one person’s fault, and a court will sometimes apportion guilt down to a specific percentage. For example, if a speeding driver hits your car but you aren’t wearing a seatbelt, they likely won’t be found 100-per-cent liable for your injuries. You might be found 20-per-cent liable and your monetary damages reduced accordingly. 

Contributory negligence and its impact on a liability claim can vary according to provincial laws.

Automobile accidents: Who can you sue?