Personal Injury

Injured and at fault — now what?

By AdvocateDaily.com Staff

The degree to which a person is responsible for an accident will have a significant impact on the amount of damages they may receive, says Toronto personal injury lawyer David Derfel.

Derfel, founder and principal of Derfel Injury Lawyers, says the issue of contributory negligence frequently arises in slip-and-fall and motor vehicle cases.

“Bascially, there are three components to a successful claim — causation, liability and damages,” he tells AdvocateDaily.com. “And in order to be compensated, all three don’t all have to line up perfectly. However, there does need to be some connection between them.”

Derfel presents the example of an individual who slips and falls on ice in a parking lot.

When determining negligence, a defence lawyer or adjuster will take into considerations the person’s footwear and whether they were aware of the winter conditions and acted accordingly, he says.

“A defence lawyer or adjuster will often take the position in such a situation that the person who fell may bear some responsibility,” Derfel says. "An icy parking lot in the winter is not a completely unexpected hazard."

On the other hand, he says a landlord or occupier of a property has a statutory duty to ensure that people are safe while on their premises. For example, did they monitor the weather conditions?

"Did they take proper precautions? Did they have in place an appropriate winter maintenance program? What steps did they take to ensure that ice would not have been there?

"It's often the case at trial that a judge or jury may have to determine to what extent, if any, a plaintiff or defendant is negligent or liable," says Derfel. "Should there be an attribution of fault to the plaintiff or injured person, their damages will be reduced to the extent of their contrition. Using the slip and fall example, if the person who fell was 50 per cent responsible, then they will only receive 50 per cent of the damages awarded."

In a car crash, for example, an occupant’s injuries may have been exacerbated because they were not wearing a seatbelt. Similarly, a pedestrian may be partly responsible when they were hit by a car because they crossed the road without looking, he says.

"Contributory negligence is very often an issue," says Derfel. "Ultimately, the facts will speak for themselves. That's why I always attempt to locate witnesses and obtain video footage when available. The more information, the better for the client. This way they know what may come of their claim despite how injured they may be."

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