Proving Negligence

How to Prove Negligence

Were you injured or suffered financial loss because someone didn’t take reasonable care? You might be wondering: Do I have a legal case? How do I go about proving negligence? These are fair questions. 

You’ve likely been dealing with pain, stress, or unexpected bills. Maybe you’re still trying to make sense of what happened. Before you start a claim, it helps to understand how negligence works under the law.

To win a negligence case in Ontario, you must prove four specific things. They form the legal foundation for every civil claim that involves carelessness, whether it’s a car crash, a slip and fall, a botched medical procedure, or professional misconduct.

The Four Legal Elements of Negligence

Courts don’t guess or assume negligence. They look for the four elements. Each one must be proven, and if even one is missing, the case may fail.

Duty of Care

The first step in proving negligence is looking at the duty of care. Did the person or organization owe you a duty to be careful?

The courts look at the relationship between the parties. For example:

•           Drivers owe a duty of care to everyone else on the road.

•           Doctors owe a duty to their patients.

•           Property owners owe a duty to visitors on their premises.

•           Employers owe a duty to provide a safe work environment.

The duty of care doesn’t have to be written down, either. If a reasonable person could expect the defendant to avoid causing harm in that situation, a duty likely exists.

Breach of Duty

Next, did the person fail to meet that duty?

This is about action — or inaction. If someone didn’t do what a reasonable person would have done, that could be a breach of duty. Examples include speeding through a red light or leaving a spill uncleaned in a busy store. It might be giving bad financial advice without warning the client of the risks.

Courts ask: Was the behaviour careless? Would a prudent person have acted differently in the same situation? The answer determines whether there was a breach.

Causation

Here, you have to connect the careless behaviour to your injury. Someone may have made a mistake, but unless you have evidence that the mistake was the direct cause of your harm, your case may not be valid.

Lawyers use two terms:

•           “But for” causation. But for the defendant’s action, would the injury have happened?

•           Proximate cause. Was the injury or adverse outcome a foreseeable result of the breach?

Both need to be answered. If the injury hadn’t occurred without the other party’s actions and the harm naturally followed from what happened, you would have a strong basis to move forward.

Damages

Finally, you need to show real losses. This could be physical, financial, or emotional. The court needs proof of harm.

Here are examples:

•           Medical bills

•           Lost income

•           Reduced ability to work in the future

•           Pain and suffering

•           Psychological effects like PTSD or anxiety

Types of Evidence Used to Prove Negligence

To make your case compelling, you’ll need to present proof. Airtight documentation convinces a court or an insurance adjuster that you were wronged and deserve compensation.

If you are unsure what to present as evidence, an experienced lawyer can assist. They’ll apply the facts of the law to your situation and collect the proof needed.

Useful types of evidence include:

•           Medical records that show the extent of your injuries and the treatment required

•           Photos or video from the scene or of your injuries, taken as soon as possible

•           Police or incident reports that describe what happened and who was involved

•           Witness statements from people who saw the incident or its aftermath

•           Expert testimony, such as doctors explaining your injuries or engineers explaining a safety hazard

•           Text messages, emails, or call logs that can show warnings ignored or responsibility acknowledged

What to Do If You Think You Have a Case

If you think you have a case, it is imperative to take action as soon as possible.

Here are some ways to get started:

•           Write everything down. Include what happened, when, who was there, and what was said. Details can fade from your memory quickly, so get every detail down sooner rather than later.

•           Gather documentation. Save all emails, receipts, prescriptions, and reports. Take pictures. Ask for copies of anything related to the incident.

•           Don’t speak with insurers alone. Insurance companies aim to protect themselves, not you. They may record your statements and use them against you later.

•           Don’t wait too long. In Ontario, most negligence claims must be filed within two years from when you knew or should have known that harm occurred. 

Most importantly, consult with an experienced negligence lawyer who specializes in handling these types of cases. You’ve been through enough. Proving negligence takes legal strategy and evidence.

Allan Rouben has more than 35 years of experience handling negligence cases in Ontario. He understands how to prove each element in court and how to present a strong case from the start.

Don’t wait any longer and don’t leave your future to chance. You are protected under the law. Reach out to Allan Rouben today for a confidential consultation.

Contact Allan Rouben Today

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