Your lawyer keeps mentioning your “Tort Claim” – what is this?
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When you talk with your personal injury lawyer you might have heard him or her say the word “tort law” or “tort claim”. What exactly does a “tort claim” mean?
If you have been hurt in a car accident, you would have access to both a tort claim and accident benefits. Accident benefits are part of your car insurance policy that you pay for – they are benefits offered by your own insurance company if you are hurt or a loved one is killed in an accident. You would be entitled to accident benefits such as income replacement benefits to replace a some of your lost wages; medical and rehabilitation benefits to fund your physical and psychological rehabilitation therapies, attendant care benefits to pay for someone to look after you, and funeral and death expenses if someone dies.
When your personal injury lawyers bring up your “tort claim” what they talking about is your lawsuit against the at-fault driver that caused your injuries. What is a tort? A tort is a civil wrong, as opposed to a criminal wrong. If you commit a crime you could be charged. If you commit a civil wrong, you could be sued. To commit a tort is to act in a manner that is wrongful and injurious toward another person. Tort law articulates the legal responsibilities or duties that that we owe to other people and it provides victims with redress – such as financial compensation.
Intentional and non-intentional torts
Tort law can be described in many different ways – but the easiest way to understand the definition of a tort is to classify it either and act that is intentional or non-intentional tort. And intentional tort could be something like an assault or something that causes another person the apprehension of harmful or offensive contact.
A non-intentional tort is a ‘civil wrong’ that was made without specific intention – such as when someone causes a victim injury or losses by committing a “negligent act”.
What is negligence?
Negligence is when someone who commits a careless act that creates harm to another person is negligent – such as a negligent driver that caused you injuries. Negligence is normally proven by using a series of criteria, including:
- Duty of care – did the driver that hurt you owe you a duty of care?
- The Reasonable Person – would a reasonable person have avoided the accident?
- Foreseeability – was the negligent act reasonably foreseeable?
- Causation – is there a causal link between the defendant’s negligent act and you injuries?
- Burden of proof – You have the onus of proving both the defendant driver’s negligent act and your injuries.
In a personal injury negligence lawsuit, you as the injured person must demonstrate that a defendant owed you a duty of care. What is a duty of care? A duty of care is a specific legal obligation to not harm others or their property. For example, a motorist and drivers owe everyone else on the road a duty of care while driving their cars and trucks. Road users always owe duty not to harm each other.
Personal injury lawyers would argue that a person acts negligently if the person does not exercise “reasonable care” under all the circumstances. When determining if a defendant driver breached his or her duty of care, personal injury lawyers tend to use something called a “reasonable person test” to determine the level or standard of care that should be expected (unless a child caused injury). When we say reasonable person – the reasonable person is fictitious, thought to be careful and considerate, never negligent, and whose conduct is always up to standard.
A Judge or jury therefore, will decide whether a defendant driver has acted as a reasonable person would have acted in the circumstances of your accident.
Why a reasonable person? It enables juries who are to decide whether the driver’s conduct is such as to subject him to liability for negligence, to look to a community standard rather than an individual one, and at the same time to express their judgment of what that standard is in terms of the conduct of a human being.
Did the Defendant actually cause your car accident injuries?
To succeed in your tort claim and to be compensated, you must establish that the defendant’s wrongful conduct caused your injuries. You as the Plaintiff need to prove that the defendant driver’s actions actually caused your injuries and financial losses. This is often referred to as “but-for” causation. In other words, but for the defendant driver’s actions, your injuries and harms would not have occurred.
You have the onus of proving you were hurt
You need to prove that the negligence occurred – and that proof is determined on a balance of probabilities, as opposed to “beyond a reasonable doubt.” Beyond a reasonable doubt is the onus that we are all used to from watching televisions, but in a civil case, you need to prove your losses on a balance of probabilities, i.e., sometimes referred to as a preponderance of the evidence or a 51 percent likelihood of the occurrence.
Is there a quicker way to summarize all of this?
When your lawyer talks about your tort claim with you – remember that he or she is talking about your lawsuit against the driver that hit you. You are suing the driver that caused your accident for damages, or compensation. We can summarize “tort claim” in the form of questions to make things simpler:
- Does the defendant driver owe the you, as the plaintiff, a duty of care?
- Did the defendant breach the standard of care?
- Did the defendant’s actions on the road cause or was there a direct connection to your injuries?
- Did the you actually suffer harm or loss?
If you have been seriously hurt or suffered life changing injuries our Hamilton Lawyers can help. Please contact Lalande & Company Lawyers by filling in a contact form or by calling 905-333-8888 to book a free no-obligation consultation. If you are injured, we can travel to you.