Personal injury lawyers know that establishing who was at fault is the cornerstone of any personal injury case. If you (the plaintiff) were not at fault, your chances of getting a high settlement are high. This may not be the case if you were even 1% at fault. Therefore, you need to understand how fault is determined.
Who determines liability?
Personal injury law states that the circumstances of the case determine fault in most cases. Personal injury lawyers in Ottawa know this. Most plaintiffs and defendants have liability insurance. This means that the insurance company tends to determine who was at fault and make the payout accordingly.
If neither you, the defendant, the personal injury lawyers, or the insurance company can determine who was at fault, your personal injury case will likely go to court. A judge and jury will then determine who was at fault.
When using negligence to determine fault
Most personal injury claims result because of the negligence of one person. A person acts negligently when he or she fails to act with the same duty of care that a reasonable person in his or her situation would and when that negligence harms another person. There are some legal elements that must be proven to establish negligence:
● Duty – the defendant has a legal duty to act in a certain way and with a certain degree of reasonable care towards the plaintiff.
● Breach – you must be able to prove that the defendant breached his or her legal duty.
● Causation – your injuries must be the result of the defendant’s carelessness.
● Damages – you must have incurred tangible damages.
Other ways to prove fault
You can prove that the defendant was at fault if you:
● Can establish that the defendant acted negligently on purpose
● You can prove negligence per se
● You can demonstrate that the case be covered by the ‘strict liability standard of proof
A person acts intentionally when he or she chooses to act in that way and wants the consequences to result in a certain manner. With negligence per se, the person may not have been acting intentionally and voluntarily but he or she is still held liable because he or she has an unexcused violation of a statute. You don’t need to prove negligence to win if strict liability applies.
How can you prove fault?
Your personal injury lawyer and the defendant’s insurance company will conduct a thorough investigation. They’ll collect evidence, interview everyone involved, interview witnesses, and hire experts. Police reports, journals, medical records, statements from people involved, counts as evidence.
The legal defenses
Some common defenses to use in a personal injury case are:
● Comparative fault – if you were also at fault, your settlement will be reduced by the percentage of your fault.
● Assumption of risk – you may not win if the defendant can prove that you knew beforehand that the activities you engaged in could result in your personal injuries.
● Respondeant superior – this is also referred to as employer liability. You may not be held liable for injuries sustained on the job. Your employer will be liable for these injuries.
As is evident, determining negligence in a personal injury case is not clear cut at all. This is why you need to hire a personal injury lawyer to help you get the settlement that you want and need.