Personal injury law covers a wide variety of areas such as injuries sustained in motor vehicle accidents, slip and falls, defective products, medical malpractice and more. What brings these disparate fields together are two aspects: 1) they all involve injuries to the person and 2) they all involve the law of negligence.
Injuries to the person are easy enough to understand. These include everything from soft tissue injuries, fractures, head and brain injuries, neck and back injuries and non-physical injuries such as depression, post-traumatic stress disorder and anxiety.
Negligence involves five key elements:
A duty of care is a special relationship and the first element required to prove negligence. Strangers passing each other on the street only owe a duty of care to one another under set circumstances.
Classic examples of relationships where a duty of care exists are doctor and patient, manufacturer and consumer, government and citizen, employer and employee, bar and patron, etc. Drivers owe a duty of care to those they share the road with including fellow drivers, passengers, pedestrians and cyclists.
If it has been established that there is a duty of care, in order for a negligence claim to succeed, it must be shown that the alleged at-fault party fell below the standard of care expected of him or her. There are two aspects of this: the nature of the standard of care must be established and the allegedly negligent party must have fallen below that standard of care.
Some examples of standards of care include: complying with all traffic laws when driving, following the boating laws and regulations, following standard medical procedures when administering medical care, etc. Regulations and statutory requirements are one way of establishing the standard of care, but the question to consider is: what would a reasonable person with the similar training do under the circumstances?
After the standard has been established, you must show how the conduct fell beneath the standard of care. In the common example of motor vehicle accidents, demonstrating that a driver, who was unsafely speeding above the posted limit, caused the collision is an example of a person’s conduct falling below the standard of care expected.
Once you have shown a duty of care and a breach of the standard of care, you must then show that the breach in question actually caused harm. Causation is sometimes obvious and sometimes more difficult to prove.
In medical malpractice cases it is sometimes difficult to establish whether an underlying medical condition caused the patient’s pain and suffering, if the doctor had any liability at all (e.g., he or she explained all the potential risks, made no guarantees and obtained consent), or whether it was an improperly performed medical procedure that fell below the standard of care. In these cases, you may require expert reports to establish causation. In other cases, such as running a red light and t-boning the other driver, the cause of the harm may be clearer.
The next step in the analysis is to consider proximity. Courts do not want claims to succeed where the cause is very remote from the eventual outcome. For example, a pedestrian who is hit by a driver who had a bad night’s sleep due to poor mattress quality. While the pedestrian has a clear claim against the driver, he or she may also blame the mattress manufacturer. However, the courts would likely find the claim against the manufacturer to be too remote for a successful negligence claim.
The final step is to establish damages. At this stage, it must be shown that the conduct that fell below the standard of care caused the person to sustain real harm such as pain and suffering due to physical, emotional and/or psychological injuries, income loss, incurred expenses, etc.
Whether your claim is big or small, negligence can be a complicated area of law. Fortunately, the test for negligence applies to minor injury claims and to catastrophic injuries. Liability for negligence also relates to individual slip and fall claims, multi-vehicle accidents and class action product liability cases that impact thousands of people.
If you or a loved one has sustained injuries due to the potential negligence of another person, you should obtain legal advice to pursue compensation for your negligence claim. At Spraggs & Co., our personal injury lawyers in Surrey BC have more than 35 years of experience assisting innocent injured people and their families. Contact us today at 1-866-939-3339 to schedule your free consultation.