Determining Negligence When Someone Injures You

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Doing something that causes harm to another person is what most people might consider when asked to describe negligence. Sometimes, it can be the failure to do something that could lead a court to award compensation to an injured victim. In either case, it is the negligent conduct of people that makes them liable for the harm they cause.

As a general rule, determining negligence depends on the party suffering harm to prove the following:

• Existence of a duty of care
• Breach of the duty
• Harm caused by the breach

Unless a victim can prove all three elements, negligence might not be established in a particular case.

Negligence and the duty of care

When you get into your car and start driving, you owe a duty of care to other people using the road. You might not consciously be thinking of owing anyone a duty, but the law and the courts in Ontario certainly do. Drivers, property owners, physicians and others owe a duty to act in a way that does not expose other people to harm.

As the driver of a car, your duty is to maintain control over your vehicle at all times and to keep a proper lookout for other drivers, pedestrians and anyone else using the road. If you fail to do so and cause injury to another person, you could be liable for the damages they suffer. For instance, if you were busy sending a text message to a friend and did not look up from your smartphone, a court might determine you breached your duty of care to the victim.

A breach of duty does not have to be caused by someone doing something. It could be the failure to do something that creates the risk of harm. A property owner who fails to clear ice and snow from the sidewalks is an example.

Establishing the standard of care

The duty owed to others is to avoid subjecting them to an unreasonable risk of harm. Courts use what has been referred to as a “reasonable person” standard. The standard asks: What would the average, reasonably prudent person have done under similar circumstances?

When dealing with doctors, lawyers and other professionals, courts still use the reasonable person standard. The only difference is it would be a reasonable person practicing the same profession as the individual against whom you are seeking to establish negligence. If, for example, you are suing a surgeon for medical malpractice, the standard of care would be that expected of a surgeon practicing for the same number of years in the same specialty as the surgeon being sued.

There must be harm caused to a victim

If you are accusing someone of negligence, there has to be a link between the conduct the person engaged in and the harm done to you. Canadian courts use a simple test to determine whether the accident and injuries would have happened if not for the conduct of the other party. This so-called “but for” test is the standard in determining negligence because it establishes the negligent conduct the cause of the harm suffered by a victim.

It is the causation courts look for before awarding compensation. If a person loads blanks into a gun, points it at another person who does not know it’s loaded with blanks and pulls the trigger, a court could find the shooter liable for causing the victim to suffer a heart attack.

A personal injury lawyer can help

Whether you are injured in a slip and fall accident at a Toronto store or in a car accident on an Ontario highway, the personal injury lawyers at Diamond and Diamond are ready to help. They are experienced lawyers with an unsurpassed knowledge of the law and the ability to identify and present the evidence necessary to prove negligence. Call our 24/7 injury hotline at 1-800-567-HURT or visit our website to speak to someone now about your claim. Consultations are free, and we have offices located throughout Ontario.