Brian Goldfinger on Liability and Losses in Ontario Car Accident Cases

Every car accident case in Ontario has three major components:

1. Liability
2. Causation
3. Damages

Without a personal injury lawyer establishing all of these components, the personal injury case will fail. Meaning, that if  Defendant successfully refutes, or creates sufficient doubt to surpass a balance of probabilities, the Defendant will win the case. As a plaintiff personal injury lawyer, you don’t want to see that happen.

In addition to these three pillars of personal injury law, your Ontario personal injury lawyer also must overcome the following rules at trial which CANNOT be shared with the jury:

1. The Threshold for General Damages (did the injured accident victim sustain a serious and permanent impairment of an important bodily function)
2. The Deductible aka the secret credit. The current deductible stands at $38,818.97 for any award for general damages below $129,395.49. The effect of the secret credit is that the Defendant insurance company does NOT NEED TO PAY THE FIRST $38,818.97  of any award below $129,395.49. We here at Goldfinger Injury Lawyers refer to the deductible as the secret credit because plaintiff lawyers are NOT ALLOWED TO MENTION THE DEDUCTIBLE AT TRIAL. So if a Jury intends to award a Plaintiff $50,000 in general damages for pain and suffering, that award automatically gets reduced to just $11,181.38 which is a 76% reduction in value from what the jury originally intended to award! On what planet do we automatically strip the will of the jury by such a large proportion?!?!? One final note on the secret credit. How many jurors to you think earn $38,818.97/year after tax. The median individual income in Ontario sits just $27,600.

In the majority of car accident cases that our law firm sees, liability is not the issue. That means that how the accident happened is not in contention. In some cases, the defendant insurance company will even go so far as to admit or not contest liability. The main issues in dispute become damages and causation; (along with fights regarding the threshold and deductible which are also along the same lines as damages and causation).

In the rare case when liability is an issue, it can get ugly fast.

The Plaintiff will have the polar opposite version of how the accident happened to what the Defendant had to say, and vice versa. It’s almost as if the parties are referring to two different accidents because their version of the events could not be farther apart.

When that happens, you can throw the testimony of the Plaintiff and the Defendant out of the window. Their version of events won’t be reliable and credibility will be an issue because both parties have a vested interest in the outcome.

When liability is an issue, it’s not uncommon for both parties to retain experts. These experts can come from a variety of fields. Its some real CSI type of stuff you would see on television or in the movies:

• Collision Reconstruction
• Engineering/Crash Analysis
• Human Factors Experts
• Collision severity
• Impact location
• Speed and dynamics
• Sequence of events
• Seat belt use
• Crash and event data recorders
• Computer simulations
• Rollovers and roof crush
• Driver identification
• Low Impact and High Impact Crash Reports
• Alcohol and drug testing
• GPS systems
• Headlamp function
• Airbag performance
• Tire and wheel separations
• Mechanical failure
• Injury Biomechanics
• Tire failure
• Winter Road/Weather Crash analysis
• Rain, fog, sun and visibility studies
• Terrain and Road Grip Analysis
• Curved Road and Elevated Road Analysis
• Traffic Light Sequencing collision studies

You can find an expert for everything under the sun, and then some. It doesn’t end.

The insurance company will retain a team of experts. Your personal injury lawyer will retain a team of experts. Those experts will duel it out in the Court, and likely really interest, or bore the jury, depending on their tolerance for physics along with the charisma, or lack thereof; of the expert.

In some cases, one expert will trump the other. But in other cases, the expert testimony will cancel each other out. In cases where the jury gets so confused, they won’t know what to do. And when that happens, their usually side with the Defendant in not granting an award, or a mistrial is declared. Neither of those scenarios is good for a plaintiff.

When both Plaintiff and Defendants have cancelled each other out; and both sides of experts have cancelled each other out, the Court will lean heavily on the testimony from lay witnesses and from investigating police officers. Both lay witnesses and police officers presumably have no skin in the game. They stand to lose nothing win, lose or draw. They’re called to provide assistance to the Court in getting to the bottom of this mess.

The testimony of the police officers and lay witnesses can make, or break your case. Regardless of what fancy reports your experts have conjured; there’s nothing stronger for a case than supportive, honest and credible testimony from a police officer when it comes to liability. But what needs to be considered is that if the officer is so on side with one party, and not then other, then it begs the question of why the police officer didn’t lay and charges on the party who s/he believes caused the car accident. It’s certainly in the police officer’s power to issue a ticket in those circumstances.

If the police officer has nothing to add other than s/he can’t recall very much other than what’s in his/her notes, then the testimony of lay witnesses can have a profound impact on the case. In the even that their the police officers nor lay witnesses can add very much, then it will be a difficult task for the Judge and Jury to sift through which party’s evidence and which party’s experts they prefer.

The winner/loser of the case can flip on the most minute fact/piece of evidence. It’s that piece of evidence which can make every other factor in the case irrelevant. Because as you will recall; it doesn’t matter about the severity of your injuries, or the traumatic impact that those injuries have had on your life. Without establishing liability in a personal injury case, you won’t have a successful case.