When An Accident Victim Is Also Negligent - Diamond and Diamond Lawyers
  • Thursday, 05 July 2018

When An Accident Victim Is Also Negligent

#AskMichaelBlois

Whether it’s a customer slipping on a wet floor in a grocery store or two of the more than 9 million registered motor vehicles in Ontario crashing into each other, there are accidents happening all the time. When an accident is caused by someone’s negligence, a victim suffering a physical injury could have a claim for compensation against the other party. It frequently happens that evidence might exist showing the party suing for compensation was also at fault in causing the accident or the injuries. Contributory negligence on the part of the person suing for damages does not automatically prevent the individual from being compensated.

What is negligence?

An incident in which someone is injured may occur through no fault on the part of another person. Whether caused by an a act of God or an unfortunate set of circumstances unattributed to a particular person, a person suffering an injury in such an incident would have no one to point to as being responsible or at fault.

Negligence, on the other hand, involves an act or a failure to act on the part of someone that causes injury to another person. A claim for damages based upon negligence requires the injured party, known as the “plaintiff,” produce evidence proving each of the following:

  • Defendant, the party being sued, had a duty to exercise reasonable care
  • Breach of the duty of care
  • Physical harm or injury to the plaintiff
  • Plaintiff suffered actual damages
  • The breach of duty was the proximate cause of the harm

If the plaintiff proves each of the elements of negligence, a court or jury may award damages. However, there are situations in which the defendant might have evidence proving negligence on the part of the plaintiff.

Contributory negligence in Ontario

Before modern legislation, contributory negligence arose in the law as a defence to a claim for damages in a negligence action brought by a plaintiff. If the defendant succeeded in proving fault on the part of the plaintiff contributing to causing the accident or the injuries suffered by the plaintiff, the injured party could not recover compensation.

If a plaintiff was found to be 1 percent at fault in causing an accident, contributory negligence would prevent any recovery. Legislation would change how courts deal with plaintiff negligence.

Contributory negligence continues to be available to defendants in negligence cases, but how it is applied by courts and juries has changed. The Ontario Negligence Act continues to allow proof of the negligence of a plaintiff to be taken into consideration by a court or jury, but it no longer makes contributory negligence an absolute bar to any recovery of damages by a plaintiff. Instead, the law directs a court to apportion damages awarded to a plaintiff according to the degree of negligence on the part of each of the parties.

If at the conclusion of a trial a court decides a plaintiff injured in an accident was 10 percent at fault in causing the accident, the amount awarded will be reduced by 10 percent. Total damages might be $100,000, but the defendant would only be responsible for $90,000 based upon being 90 percent responsible.

The Ontario law prohibits awarding damages to a plaintiff whose negligence is determined to be equal to or greater than the negligence of the defendant. The degree of negligence is an issue left to jurors to decide unless the case is tried without a jury in which event a judge makes the apportionment.

Ontario personal injury lawyers

The personal injury lawyers at Diamond and Diamond have years of experience successfully handling claims for compensation individuals injured through the fault of others. If you have been injured in an accident, you could have a claim for compensation. Call the Diamond and Diamond 24/7 injury hotline at 1-800-567-HURT or visit their website to speak to someone now. They offer free consultations and case evaluations to injury victims throughout Ontario.

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