Three Reasons Personal Injury Claims Fail in Ontario

Personal injury law is a safety net designed to catch those who have suffered physical or psychological harm due to another person’s wrongdoing or negligence. In essence, if a person’s actions or inactions cause you harm in any way – be it physical, emotional, or financial – the law provides a remedy for you, the injured party (the plaintiff), to seek damages from the responsible party (the defendant). Think of it as the legal way of saying “you break it, you buy it”.

No one plans for a serious injury, but readiness is your best defence when the unexpected happens. Filing a monetary claim can be a long, demanding journey; being well prepared and armed with every tool in your arsenal is the most important step you can take.

This article aims to help you understand and avoid common errors and legal missteps that sink personal injury claims.

Personal injury claims fail for a multitude of reasons, but three of the most common reasons include:

Failure to Prove Negligence

Most people presume that if they are hurt and someone else is involved, it means automatic compensation. However, this is not the case. Negligence is at the center of most personal injury claims, and failing to prove this signifies you cannot legally blame the other person for the accident or incident.

To prove negligence and establish causation, you have to show the accident would not have occurred ‘but for’ the other person’s mistake. You are connecting the dots to show how a person’s mistake directly led to your injury.

Generally, the following criteria must be met:

1. The defendant owes you a duty of care

A duty of care basically means every individual has a responsibility to act in a way that does not harm or hurt people around them. For instance, drivers owe a duty of care to fellow drivers and pedestrians to obey traffic laws, just like doctors owe a duty of care to their patients to provide proper medical care. In layman’s terms, they were supposed to look out for you.

The court held in the case of Rankin (Rankin’s Garage & Sales) v J.J., that a duty of care was not owed to a teenager who stole a car from a garage, as it was not foreseeable the theft would lead to an injury.

2. The defendant breached that duty

Seeing as a duty of care is the responsibility to act in a way that does not harm others, a breach is said to occur when that responsibility is ignored. The Ontario courts use the “reasonable person” test to determine if someone breached their duty – would a reasonable person have done what this person did in the same circumstance?

A breach could either be an action (doing the wrong thing) or inaction (failing to do the right thing).

3. The breach caused your injury

This is the direct link between a person’s carelessness and your actual injury.

4. You suffered damages as a result of the injury

This could be in the form of a physical or psychological injury, or even financial loss. As held in Palmer v Teva Canada Limited, there has to be proof of harm.

A claim can fail when one or more of the above-mentioned criteria cannot be met.

Failure to Meet Deadlines and Limitation Periods

This is one of the more common reasons personal injury claims fail in Ontario. Under the Limitations Act, it is generally required that the plaintiff (i.e. the injured party) begin their action within two (2) years of when the claim is “discovered”.

When a claim is discovered, it means you realize these four things: you were harmed, someone caused it, you know who to blame, and a lawsuit is the right way to fix it. In most cases, this means two years from the date of the accident or incident. If you wait longer than two years from the day you realize these four things, you may lose your right to sue entirely. This is known as the basic limitation period.

The Limitations Act also establishes an ultimate limitation period of fifteen years. Once fifteen (15) years have passed from the date of the accident or incident, a lawsuit cannot be filed even if the injury or incident was discovered later, or there are ongoing consequences resulting from the event.

Besides the general limitation period outlined above, people can also miss much shorter notice periods.

For example, if you slip on a city sidewalk, you must provide written notice within ten (10) days. If you are involved in a car accident, your insurance company must be notified within seven (7) days and a formal application for accident benefits (OCF-1) must be submitted within thirty (30) days.

In Brady v Waypoint Centre for Mental Health Care, not only did the Court dismiss the claim because it commenced after the two-year limitation period, but costs in the amount of $25,000 were also awarded to the defendant.

Failure to comply with notice period requirements can put your ability to pursue a claim at risk and may even shut the door on your claim. If you are uncertain which deadline applies in your case, your best course of action is to speak to a personal injury lawyer at the earliest opportunity; the bottom line here is to act fast.

It is important to note that the government has exempted certain types of claims from limitation periods. If your case involves institutional sexual abuse or harm to a minor, there may be no limitation period on that case. Even if the time period has passed, it is wise to consult a lawyer to understand your rights.

Digital Footprints

In today’s digital age, almost everyone has an online presence. However, a potential claimant must be careful about what is posted online. This is because comments or pictures can be taken out of context and used to undermine your credibility. A social media presence is an avenue for insurers or the defendant(s) to fish for inconsistencies.

Pictures of physical activity or even talking about your injuries publicly could cause significant damage to your claim. In a situation where you post a picture of yourself skating, cycling, dancing, or attending parties after making a claim for Post Traumatic Stress Disorder (PTSD), chronic pain, or loss of enjoyment of life, those pictures can serve as strong evidence that your symptoms are falsified or exaggerated.

This was the case in Moretto v Nicolini-Femia where a dog bite victim who suffered facial scarring claimed loss of self-esteem and psychological damage. The defendant produced posts from Facebook, Instagram, and X (Twitter) showing the said victim taking numerous selfies and actively engaging in social life, thereby contradicting her allegations and resulting in her monetary compensation being reduced.

While your claim is ongoing or at least until it is resolved, it is advisable to suspend or limit your use of social media.

Filing a Personal Injury Claim in Ontario? Talk to an Experienced Personal Injury Lawyer

These are just a few of the mistakes made in personal injury claims, which can result in reduced compensation, a delay in the claims process, or even the denial of a claim. Avoiding these pitfalls takes not just caution, but professional support to guide you through the process.

At Preszler Injury Lawyers, our Toronto personal injury lawyers are dedicated to helping injured clients pursue compensation while navigating the legal process as seamlessly as possible. Schedule a free consultation today to get started.

 

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