Circumstances Surrounding your Accident or Injury

By Bergeron Clifford, Warren WhiteKnight posted in Accidents on March 6, 2017

I was in a car accident and I was charged. Can I still make a claim?

If you were in a car accident and were charged by the police as a result of the accident you can still make a claim. In Ontario we have what are called no fault statutory accident benefits. These insurance benefits are available to anybody injured as a result of a car accident including the driver, regardless of whether or not they were at fault, a passenger, or even a cyclist or pedestrian, and even if any of the injured people don’t have their own car insurance. See our articles here  for details about statutory accident benefits.

If you are charged as a result of a car accident you may also still be able to make a claim against another driver involved in the car accident. You also may be able to claim against a road authority if there are facts to show that improper road maintenance, signage, road design or other such issues caused or contributed to the crash. The fact that you have been charged as a result of an accident does not mean that you are necessarily at fault at all, or necessarily at fault fully. A charge under the highway traffic act is a regulatory/quasi-criminal charge. The standard of proof in this type of law is different and separate from the standard of proof in a civil claim which is the type of claim you make against an at-fault party for injuries you have suffered. Being charged is never helpful in terms of proving a civil claim but it does not necessarily negate or erase your ability to make a claim.

Most importantly, if you have been charged as a result of an accident and you do not think the charges are correct do not plead them down. If you are charged with an improper left hand turn or illegal merge or failure to yield or something of that nature, it is quite possible that they may reduce the charge and offer to give you some sort of minor ticket. Don’t accept this option without speaking to a lawyer. It may seem like a good way to avoid getting points on your license and to reduce the fine but if you end up wanting to make a civil claim it can look like an admission of guilt. If you pay the ticket it can end up looking like you agree with the facts that were alleged and have been levelled against you. You may not want to do that.

I am not sure I want to sue or make a claim against the person that caused my accident or injury, what should I do?

People often ask this question when the person who has caused their injury is someone either in their family or someone with whom they have an ongoing friendship or business relationship. They don’t want to destroy the relationship or impose financial hardship on that person. What if you are a passenger in a vehicle that your friend or family member is driving and they crashed the vehicle? What if you slip and fall on your friend’s icy driveway? Can and should you make a claim against them? The answer is yes because this person has the benefit of insurance coverage. This is what we call a friendly lawsuit.

People often get very nervous about suing somebody they are close with because they don’t want that person to lose their house or their pay cheque as a result of the claim. However, what are you supposed to do when you have suffered serious injuries and are out of work and need medical care and help around the house? That is what insurance coverage is there for. The best way to deal with this scenario is to contact an injury lawyer for consultation. Your injury lawyer will put the potential at-fault party on notice in a very friendly way. They will explain to that person that “as you know your friend/family member/employee/business contact was injured in a car accident/injury at your property and they are suffering serious losses. We imagine that you have insurance to cover these losses and we would ask that you put us in touch with your insurance company so that they can take care of your friend”. Most people are very understanding of this circumstance. The worst and only negative outcome that can happen to the person you are making a claim against is that their premiums for their insurance may rise a little bit. Most often this can’t be avoided, even if you don’t make a claim. If an injury has happened on their property or in their car it must be reported to their insurance company so that they don’t lose their coverage. It is the fact of the injury and not necessarily the fact of the claim that will cause their premium to rise. This is all to say that whether or not you make a claim their premium will most likely rise by a small amount. This amount is a pittance compared to the losses that you are suffering.

Importantly, the person that you make a claim against is not going to lose their house and is not going to lose their pay cheque. They are not going to have to sell their car to pay your insurance claim. This is why we have insurance. The most common level of insurance in Ontario is $1 million and the statutory minimum is $200,000.00. Our general advice is that everyone should have $2 million at the very minimum. For the average person who has a million dollars in coverage, the settlement or court award up to $1 million will be covered entirely out of the insurance policy and the at-fault person will not be responsible for anything.

The other driver has a history of accidents. The place where I was injured is designed badly and people are always falling there. Does this help my case?

It is very common for our clients or people who contact us to share lots of information that they have about the circumstances surrounding their injury. They often want to point out that the intersection where the accident happened “is a really bad one and people are always crashing there.” They also will point out that the place where the set of stairs that they fell down “is known to be a really dangerous set of stairs. The manager who did the incident reports tells me that there have been lots of problems with them and that they need to get them fixed.” Does this help my case?

The answer is maybe.

The rules of evidence in Ontario and Canada are very complicated. Everything that our clients tell us, and what we find through our own investigations from visiting accident or injury scenes and all of the paperwork we review are properly called “information”, they are not actually evidence. Evidence is the information that a judge will let in at a trial. Not all information we have will be admissible at a trial, and therefore it is not properly called evidence. I guess it is possible to call it evidence but if it is deemed inadmissible then it is pretty useless.

The analysis leading to the admission of evidence is very complicated. One of the most important steps in admitting evidence is an analysis called probative versus prejudicial value. This entails asking the question “is this information relevant, and if it is relevant, is it directly linked to the court’s ability to understand whether a fact is more likely than not to have occurred?” If it is relevant then the court needs to ask whether or not there is a prejudicial effect of admitting the evidence, which is to say will the benefit of admitting the evidence (the increased understanding it will enable) outweigh any sort of confusion it may introduce into the process.

Take the example of an intersection where lots of accidents happen. First of all if you are not suing against the road authority then most likely you don’t want this evidence to go in even if it is relevant. If you are the innocent party in an accident introducing evidence that shows the intersection has frequent accidents will just give the at-fault party some excuse to say “this is not my fault this is just a badly designed intersection”. However if you are claiming against the municipality or road authority for poor road design it may be relevant. The court will have to assess the probative versus prejudicial value of this information before admitting it. Why are there so many accidents at this intersection? Do we have evidence to show that there are frequent accidents at this site because of poor design? Or is it possible that there are frequent accidents at that intersection simply because it is a very high traffic intersection and so statistically it has a higher likelihood of an accident because there are so many people passing through it on a daily basis?

Take another example. If you suffer a slip and fall on the front steps of a fast food restaurant and the manager tells you “I am so sorry you got hurt, lots of people have fallen on these stairs this year, and I have told the main office that we need to do something about it.” Why did you fall down the stairs? Did you catch your toe on a raised lip of concrete? If so then the fact of previous falls may be very relevant. The fact that the manager knows about the previous falls could enable us to show that it was unreasonable for them to not fix the steps once they knew it was a hazard. What if you fell down the steps because of ice buildup? The fact that lots of other people have fallen down the stairs may or may not be relevant. If they also all fell down the stairs because of ice buildup then this could show that there is a habitual lack of winter maintenance on the steps. If other falls happened in the summer time or simply because people aren’t paying attention, then this is likely not relevant at all to why you fell in the winter time. The court might not let this information go into evidence as it would be more prejudicial than probative.

All of this is to say that when we conduct our investigation and build the evidence required to prove a claim we always try and prove it with direct and immediately relevant evidence as much as possible. The more that we have to rely on circumstantial and surrounding evidence the weaker the claim will appear to the court and to the insurance company defending the claim.

I was injured in a car accident or slip/trip and fall and then when I went to the hospital the nurses and doctors didn’t do their job properly. Should I make a claim against them to?

The basic answer is that if it can be avoided you should not make a claim against the nurses, doctors, or hospital. Each case will turn out its unique facts and so you should speak to an injury lawyer.

This is an inquiry that we get all of the time. In the immediate time following a traumatic injury to themselves or a family member people are often very emotional and have a heightened sense of awareness about what is going on with their medical care. They are in pain and worried about what is going to happen. When they go to the hospital or their family doctor they get medical care that in hindsight may appear not to be perfect. Maybe it’s worse than that and appears downright bad. Unless the lack of follow-up care or improper follow-up care causes a significant change for the worse in your injury or recovery then in most circumstances you should not make this additional claim.

If you do, you will find yourself in two lawsuits instead of one. You will have a negligence claim against the at-fault driver or the owner of the property where you fell, and then you will also have a claim against the medical professionals. One lawsuit is difficult enough and two lawsuits can create a perfect storm of confusion.

Proving a claim in negligence against a medical professional is much more difficult than proving a claim against an at-fault party such as another driver or the owner of a property where you fell. A whole variety of expert evidence may be required. Further, the insurance companies that defend doctors, hospitals, and nurses fight tooth and nail. Where most car accident or slip and fall claims settle out of court, many more medical negligence claims go all the way to a trial.

There is also the very complicated issue of causation. If you point the finger at two or more defendants (an at-fault driver and a doctor for example) you are effectively saying “both of you caused my injury”. What are these two people going to do then? Of course they are going to say “we didn’t do to you what you say we did, but if we did, it was the other guy’s fault.” You can see the confusion that this causes.

Finally if you are in a car accident and injured and then have to go to the hospital and then afterwards you are not happy with the care you received at the hospital, what is the reason you were at the hospital in the first place? The at-fault driver crashing into you of course. It is quite right to say that the doctor at the hospital should provide you with competent medical care. However you would have never found yourself under the care of that doctor if the driver had been paying attention instead of texting on her phone or if they had stopped at the red light as they are required to do. In most circumstances we will not make the additional claim against the doctor and will just claim against the at-fault driver. We will then let the at-fault driver do their own investigation and if they want to complicate things by dragging in a medical doctor then we will tell them to go ahead and “fill your boots”.

All of the above examples are just some of the circumstances that may surround your injury. No injury claim is straight forward. There are always wrinkles and complications. The best thing that you can do following an injury is to get prompt medical care and then get legal advice. Your lawyer will investigate the claim and figure out what evidence is relevant and admissible. The lawyer will give you advise about what insurance policies may be available to you and what potential at-fault parties should be claimed against.

The time following a traumatic injury to you or a loved one is very difficult, and all of our clients tell us that having an injury lawyer on their side to navigate the legal circumstances puts their mind at ease.

Contact Bergeron | Clifford LLP

Let us help you if you have been injured anywhere in Eastern Ontario. Contact us at 866-384-5886 or fill out our online form. We can meet at any of our office locations, including Kingston, Ottawa, Whitby, Carleton Place, Perth or wherever is most convenient for you.

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