You will often hear personal injury lawyers refer to the term “tort“, or “tort case”, or “tort claim” or “tort law”. But what is a tort anyways? Here is a quick breakdown.
Torte: Noun: a yummy and rich, often multilayered cake that can be made with little to no flour, using ground nuts or bread crumbs instead. These cakes are typically filled with ingredients like whipped cream, buttercream, jam, or fruit. Many traditional tortes, such as the Sachertorte and Linzer torte, have Austrian or German origins. Torte cakes are not legal terms. They are delicious deserts which make for wonderful housewarming presents.
Torts: Person: John Tortorella aka “Torts” (born June 24, 1958) is an American professional ice hockey coach and former player. He most recently served as head coach for the Philadelphia Flyers of the National Hockey League (NHL). Tortorella has also been the head coach of the NHL’s New York Rangers, Tampa Bay Lightning, Vancouver Canucks and Columbus Blue Jackets. He led Tampa Bay to the 2004 Stanley Cup championship. I do not recommend bringing Tort with you into the Courtroom for a personal injury case. While I believe that he’s a great guy, and would make for a tenacious advocate, his expertise trends more towards hockey rather than personal injury litigation.
Tort: Noun: Legal: is a wrongful act other than a breach of contract for which relief may be obtained in the form of damages or an injunction. An act of injury or damage to a person or property that is covered by a law, so that the person can start a court action. Ontario car accident cases are divided into two cases: The Accident Benefit Part and the Tort Part. The Tort claim is the claim against the at fault driver who caused the accident in the first place. You will hear your personal injury lawyer describe this as the “Tort Claim” or the “Tort Case” or the “Tort Action“. Not to be confused with Torte (the delicious cake described above) or Torts, the Stanley Cup winning hockey coach described above. You can see how people can get confused!
Having a successful tort case for a car accident is not automatic simply because you’ve been involved in a car accident. It is actually quite difficult to have a successful tort case. In fact, the laws are designed to protect at fault defendants more so than they are designed to compensate innocent accident victims. This doesn’t make any sense, but it’s the way the law works. It’s quite unfair that the laws unfairly punish innocent accident victims, and instead protect at fault drivers for their negligent actions.
A driver can be drunk, and texting, running a red light and still be afforded these protections in civil actions under Ontario’s car accident law.
In order to have a successful tort claim, the Plaintiff bears the burden of proof to show that the Defendant was negligent. This means that they caused the accident, or were at fault (either partially or completely) for the subject motor vehicle accident. This part of the case is liability.
But liability is often the most non contentious part of the case; particularly where the Defendant has been charged, or convicted by the police for causing the car accident. Generally, when that happens, the Defendant will offer to admit liability in exchange for something from the Plaintiff (like the Plaintiff limiting their claim to the policy limits). The Defendant knows that s/he does not have to win the case on liability. This will likely be the weakest aspect of their legal defence.
The Defendant will focus instead on defending the claim when it comes to damages (injuries and losses), along with causation (did the injuries/damages arises as a result of the subject car accident).
By focusing on the areas of damages and causation, the Defendant can lean into their legal strengths, along with the laws for Ontario Car Accident Cases which are designed to protect Defendants and not serve accident victims.
In Ontario, a Plaintiff must establish that their injuries meet the medico legal threshold for damages; and surpass the monetary deductible for non-pecuniary damage claims. The threshold and the deductible are two very large mountains for any Plaintiff to overcome. Even with objective injuries (like a fractured bone), the Plaintiff must still establish that the fracture presents a serious and permanent impairment of an important bodily function which is limiting their ability to function normally.
The Defendant will concede that there was a fracture, and that the fracture was caused by the Defendant’s negligence; and that the fracture was a direct result of the subject motor vehicle accident. But, the Defendant will argue that the fracture has healed, and that the Plaintiff has returned to a normal level of functioning. Therefore, the healed fracture in their submissions to the Judge do NOT present a serious and permanent impairment. The Defendant will present evidence to the Judge/Jury of the Plaintiff’s ongoing level of normal functioning on a day to day basis through presenting medical records with notations of “doing well” or “feeling better“; along with expert reports or perhaps surveillance video showing them leading a seemingly normal life and performing regular tasks. If a Judge/Jury accepts the Defendant’s evidence that the Plaintiff has returned to a normal level of functioning, then, in all likelihood, they will find that the Plaintiff’s injuries do NOT meet the medico legal threshold and they will not be able to award the Plaintiff with any non-pecuniary damages for the tort claim. Even if the Plaintiff did nothing wrong. Even if the Plaintiff was in a cast and non weight bearing for a few weeks post accident. Even if the Plaintiff was hit by a drunk driver who ran a red light. The Defendant will lean in to their strengths created under the Insurance Act in order to defeat the claim. Not on liability. But on damages. And it’s on the topic of damages that the majority of personal injury cases are fought on; and which either make, or break, a successful personal injury case.