Negligence is not a word we hear, or want to hear in everyday life. In legal terms, negligence occurs when someone injures another person or party by doing something that a reasonable person wouldn’t do, or by not doing something a reasonable person would. Defining what is reasonable is often a gray area.
Under the law, we are required to be responsible for the safety of others both on private property and in the work place. We must clear the snow from our sidewalks and driveways and ensure our place of business meets certain safety standards. We are also expected to act in a reasonable manner behind the wheel.
When a breach occurs and someone gets seriously injured, or a death has occurred as a result of negligence, the negligent party may be responsible for damages. There must be a causal connection between the negligent act and the act or omission and the harm must be reasonably foreseeable. For instance, a driver may be negligent if he is driving recklessly, something the passenger could not have known until the car was in motion. If an accident occurs and someone is seriously injured, the driver may be liable for failing to perform in a safe manner as compared to how a reasonable person would behave. In other words, the driver was negligent in providing for the safety of the passenger or others on the roadway.
When such an incident occurs, insurance companies will undertake a thorough investigation to establish who is at fault. This evidence can include police reports and notes, witness statements, photos of the scene and documentation of events leading up to the accident. Diagrams and scenarios help insurance companies determine who is at fault under Ontario’s fault-determination rules. Other factors such as underwriting risks are also determined using this evidence. However, it is the Court that determines fault in the case of a civil action when an injured party is seeking damages. The Court weighs the available evidence and then determines the degree of negligence against the wrongdoer. If the Court finds the driver to be 25% responsible, the amount awarded to the victim will be substantially lower than if the driver were to be deemed 100% responsible. The court will also determine the degree of fault of the injured party and their damages will be reduced by their percentage responsibility. In a car accident case, contributory negligence could be found if the injured party failed to wear a seat-belt or willingly entered a vehicle when they knew the driver was impaired by alcohol or drugs. In very rare and extreme cases, the injured party may have voluntarily assumed the risk of entering the vehicle and forfeited their right to recovery.
Although the driver may try to prove they did not intend harm, a negligent act is a serious allegation which can be as disastrous as a pre-meditated crime. Compensation should accurately reflect the damage suffered by the injured party, putting the victim in an equivalent position as he would have been if the incident had not occurred.
At Futerman Partners LLP, we have 75 years combined experience in dealing with such matters. The initial consultation is free, without obligation. 416-925-4100.