September 15, 2019

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Personal Injury Litigation in Canada

Personal injury law in all provinces in Canada except Quebec is governed by the rules of tort law, which allows a person who suffers injury or damage to recover damages or compensation from the person responsible for the injuries. In Quebec, personal injury law falls under the law of obligations.





Personal injury suits are usually framed as unintentional torts and the result of negligence. In order to bring a successful personal injury claim in Canada, it is usual for the claimant to prove that a negligent act or omission of the defendant caused the injuries he suffered.


The claimant must first establish the scope of the duty of care owed to him by the defendant, and then show that the defendant negligently breached his duty of care. The court will also need to establish the standard of care appropriate to the situation. Negligent behavior can be shown by establishing that the defendant failed to act in the manner in which a reasonable person in the same situation would have acted.





The court will need to establish that an act or omission of the defendant actually caused the injuries of the claimant before liability can be attributed to the defendant. A but-for test can be used to determine if the injuries would not have been sustained but for the defendant’s act or omission.





Even if it is established that the injuries would not have been sustained by the claimant had the defendant not acted or omitted to act, it is still open to the court to find that the injuries were too remote from the defendant’s act or omission to enable the court to find the defendant liable for the injuries. This is a confusing area of law that is at times still unclear and inconsistently applied.


An example of when a court might find an injury too remote from the act or omission of the defendant are when the act of the defendant sets off a long chain of events that eventually ends in the injury of the defendant, but which sees an unforeseeable intervening act occurring after the act or omission of the defendant that may have influenced the unhappy outcome.


Despite the tests of foreseeability that seem to have an effect on whether the defendant is found liable or not, the thin skull rule contradictorily establishes that in determining what a reasonable defendant would have done in the circumstances, the victim must be taken as he is, and pleading ignorance of any special conditions he might have been suffering from that worsened his injuries unbeknownst to the defendant does nothing to absolve the defendant from liability.





Even if all the above factors are found in favor of the claimant, the defendant may still manage to escape total liability and have damages reduced by establishing one of the categories of defense.


The defendant may establish contributory negligence by showing that his opponent added to the severity of his injuries with negligent acts or omissions of his own, such as a failure to take care. Voluntary assumption of risk can be pleaded if the accident was caused partly because the claimant took on a risk of his own accord, one that a reasonable person would have foreseen to be dangerous. Finally, if any illegality on the claimant’s part can be shown, liability might be escaped partly or completely by the defendant.