Understanding Liability in Personal Injury Cases

If you are hurt in a slip and fall in a bank or from spilled hot coffee from a restaurant, that doesn’t necessarily mean you have a viable lawsuit, says Toronto personal injury lawyer Darryl Singer.

“Just because you’re hurt doesn’t mean you can sue the place where it happened,” says Singer, principal of Singer Barristers Professional Corporation. “Somebody other than you has to be at fault for the accident. There has to be an element of liability.”

It may seem like a simple concept, but Singer regularly receives inquiries from people who are eager to sue — even if they were injured as a result of their own clumsiness.

For example, Singer recently tried to help a man who slipped at a bank, resulting in very serious injuries. The man told Singer he fell because he thought there was spilled liquid on the floor.
Singer issued a notice of lawsuit to the bank, and an insurance adjuster contacted him a short time later, saying they had security camera footage showing the man’s fall.

After viewing the footage, Singer could see there was no spill or other reason for the fall. The man simply tripped over himself when he turned around.

“I explained to him that the bank was not at fault, notwithstanding the fact you had an unfortunate accident that caused you to have an injury,” Singer tells AdvocateDaily.com. “But there’s no possible way it’s the bank’s fault. You can’t sue the bank.”

It was difficult for the man to accept, he says. He believed the bank should pay for his medical rehabilitation, since that’s where the injury occurred.

“This is constant,” Singer says of the misconception around liability and slip and falls.

In another example, a woman tried to get his help after falling outside of a private building. But when his associate viewed the area, she couldn’t find any physical issues with the site. There was no construction at the time of the fall, the weather was fine and the sidewalk in good repair.

Singer believes the confusion around liability is exacerbated by stories coming from the U.S., such as the woman who sued McDonald’s and won a $2.86 million jury award (later reduced to $500,000) after suffering from third-degree burns in her pelvic area from a coffee spill.

In fact, Singer also has a client who was also burned by McDonald’s coffee. He says while she has a good case, she could never dream of winning millions in damages.

“Since the scale of damage awards in Canada is not the same as in the U.S., the case is not worth $2.86 million or even $500,000. It is worth significantly less.”

Singer says people need to realize there is a big difference between hurting yourself because of an accident and as a result of someone’s negligence.

“If you come to my house and fall down my stairs because you’re clumsy, you can’t sue me,” Singer says. “If you’re leaving, it’s winter and you slip because I didn’t salt the stairs, yes, you have a case.

“It’s all about liability.”

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Appeal Court Ruling Ensures Client Receives Assessment

The Ontario Court of Appeal’s decision to have an injured appellant’s fee agreements with two law firms reassessed shows that the court felt a need to step in and ensure the client was not deprived of his right to an assessment, even though he urgently needed the money, Toronto personal injury lawyer Darryl Singer tells Legal Feeds.

Clatney v. Quinn Thiele Mineault Grodzki LLP centred around the 2013 settlement of a man’s personal injury claim for $800,000, after he had been seriously injured in a 2008 crash, Legal Feeds reports.

The appellant originally pursued the claim with Bertschi Orth Solicitors and Barristers, but later switched to Quinn Thiele Moneault Grodzki LLP.

The first firm billed the man more than $117,000 for its work on the file, and the second firm initially told him it was owed more than $305,000, the article notes.

According to the ruling, the appellant ran into problems after asking for a release of $50,000 from his settlement, and ended up paying Quinn Thiele $210,000 and Bertschi Orth $100,000.

In the ruling, Justice Gloria Epstein said the appellant was “vulnerable” when he entered into the fee agreements with the firms, and “was permanently impaired by the brain injury he suffered in the car accident. He was under intense financial pressure. The appellant did not have independent legal advice when such was clearly called for. He expressed his dissatisfaction with the legal services rendered by both firms,” said the ruling.

The court ruled that all costs, fees, charges, and disbursements relating to the case be assessed and ordered $10,000 be paid to the appellant for costs of the initial application and $15,000 for the appeal, the article notes.

Singer, principal of Singer Barristers Professional Corporation, who was not involved in the case, tells Legal Feeds that;

“It appears that the Thiel firm used the client’s financial desperation to extract a settlement for itself, and the appeal court appears to have felt that it needed to step in and ensure that the client was not deprived of his right to an assessment just because he was in dire need of the money.”

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Criminal Conviction Can Help Plaintiff Prove Civil Liability

While a finding of guilt in a criminal proceeding doesn’t guarantee a win for the plaintiff’s counsel in a civil case, it does make things easier as the burden of proof has already been met, Toronto personal injury lawyer Darryl Singer tells Recovery magazine.

“If you’re already convicted it’s unlikely that you’d be able to successfully argue that you weren’t liable and your lawyer’s strategy at that point in the civil case would be to shift to limiting the amount by saying, ‘Yes, he committed an assault and we admit the liability but we don’t think the damages are as high as the plaintiff says,’” explains Singer, principal of Singer Barristers Professional Corporation.

Singer, who typically acts for plaintiffs who are bringing a suit against a convicted drunk driver or for a person who has been assaulted and the perpetrator has been convicted, explains that a conviction under the Criminal Code doesn’t automatically mean that he will win civilly.

He adds, however, that, “it certainly helps me get over the liability hurdle.

“The key is because the test to convict in criminal court is higher than the test to prove liability in the civil court.”

In a criminal matter, he says, the court has to be satisfied beyond a reasonable doubt that the person has committed an offence. In civil court, it only has to be satisfied that on the balance of probabilities the defendant is responsible.

Singer says in the article that it doesn’t bother him if someone he’s suing in civil court is found not guilty at a criminal trial — the mere fact there is a charge is helpful.

“Obviously if there’s a conviction then proving liability is much easier in a civil case because I’ve already got a precedent.”

There are a number of reasons why a person may escape conviction on a criminal charge, he explains, including the Crown deciding to drop the charge if they feel the case is not worth pursuing, or allowing an accused who is a first-time offender to enter into a peace bond.

If a defendant is found not guilty in criminal court, this means the defendant’s lawyer can argue in civil court that the person is not responsible for an act, says Singer, “however it doesn’t mean that we’re down and out on the liability.”

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