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What You Need to Know About Apportioning Fault in Personal Injury Cases and Contributory Negligence

Sometimes, it’s completely clear who caused an accident. In other situations, the question of who was at fault is not as straightforward. In Ontario, liability or “fault” for an accident can be shared by more than one person. In today’s article, our accident claims lawyers will explain how fault is determined and how liability for an accident can impact the compensation you receive in a personal injury case.

How fault is determined after an accident


A personal injury lawsuit is rooted in negligence. A person is negligent when they create an unreasonable risk of harm or fail to take reasonable care to prevent harm, and that causes injury or loss to another person. Whether you were hurt in a car accident, slip and fall, dog bite, or because of a defective product, you can file a personal injury lawsuit against the person or people whose negligence caused your injuries (known as the “defendant” or “defendants”).

Contributory negligence


Liability for the accident is determined by examining the evidence, such as police reports, witness statements, photos of the scene, video footage, and/or evidence from an accident reconstruction expert. Depending on the type of accident that caused your injury, there can also be laws and regulations that apply to the question of fault, such as the Negligence Act, the Occupiers’ Liability Act, the Highway Traffic Act, etc. Previously decided personal injury cases with similar facts can also guide the question of liability.

How fault is apportioned in a personal injury claim


After considering all the evidence and any applicable laws, liability for the accident is determined and fault is apportioned if multiple people are responsible. Apportionment considers the relative degree to which the defendant(s) departed from the applicable standard of care. Fault is measured on a scale from 0% to 100% where 100% is completely at fault.


Fault for an accident can also be apportioned to the person who was hurt. If the injured person was partially responsible for the accident or for the extent of their injuries, the injured person’s damages will be reduced by the percentage of fault apportioned to them. This is a legal concept known as “contributory negligence.”


Let’s look at how contributory negligence impacts compensation in a personal injury lawsuit. If you were hurt in a slip and fall accident due to uncleared ice in a parking lot, but you weren’t wearing proper footwear when you slipped, there may be a finding that you are partially to blame for your own injuries. Fault will be shared between you and the person responsible for maintaining the parking lot. if you are found to be 15% at fault, for example, you will only recover 85% of your total damages.

Special information about determining fault for a car accident


If you were hurt in a car accident, there are detailed Fault Determination Rules set out in the regulations to Ontario’s Insurance Act that apply. The Rules address common accident scenarios, and each scenario assigns a corresponding liability percentage to each driver. Ontario automobile insurance companies rely on these Rules to determine who is at-fault for an accident. It’s important to note that the Rules are not binding in a personal injury lawsuit. You may still be entitled to bring a negligence lawsuit against others regardless of the insurance company’s decision about fault. If you are in this situation, your best bet is to reach out for advice from one of our car accident claims lawyers as soon as possible.


Another important note: regardless of who was at fault for the car accident—and even if you were 100% at fault—you are entitled to recover statutory accident benefits. Every automobile insurance policy in Ontario contains a mandatory accident benefit component. This coverage allows you to access various benefits, whether the accident was your fault or someone else’s (hence why they are referred to as “no fault” benefits). You can claim for benefits including medical and rehabilitation benefits, attendant care benefits, and income replacement benefits. Accessing benefits is often difficult and complicated, so it’s a smart idea to contact an accident benefit professional at our Oshawa law firm for assistance with your no-fault benefits claim.


Reach out to our Oshawa personal injury lawyers


If you or a loved one has been hurt in an accident, we can help you claim compensation. Our Oshawa law firm is experienced in cases involving car accidents, dog bites, defective products, brain injury, and catastrophic impairment.


Our team of Oshawa personal injury lawyers will help you consider your possible legal options and assist you through the steps of bringing a personal injury claim. We will walk you through the entire process, from securing evidence and preparing a strong case to negotiating with the insurers representing the party responsible for the accident. We have the skills and experience to push back against allegations of contributory negligence to maximize your financial compensation.


Kelly Greenway Bruce is a full-service law firm with extensive experience in personal injury matters with offices in Oshawa, Lindsay, Kawartha Lakes, Durham Region, GTA and surrounding areas. Contact us today for a free case evaluation from an experienced accident lawyer.

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