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Assault Claim? Make sure the Defendant has Deep Pockets.

The clashes taking place in Washington DC earlier today got me thinking about assault cases. It’s a mess what’s happening there.

We have seen a spike in calls during the pandemic with regard to physical violence. I can tell you there’s a lot of rage inside and outside homes. People are fed up of being locked down and are either taking matters in to their own hands, or taking out their frustrations on other people (family and strangers a like).

Goldfinger Injury Lawyers certainly doesn’t endorse the use of violence. Victims of violence often call our law firm to get the compensation which the deserve.

The problem however with these types of assault cases is recovering money on behalf of our clients. This is a very common problem in assault cases and I will share with you why in today’s instalment of the Toronto Injury Lawyer Blog.

If you are the innocent victim of violence, and you know the identity and whereabouts of the offender; chances are you will have a successful personal injury case. It’s not too often that a personal injury lawyer can make a bold statement like that; but it’s true and bears repeating. If you are an innocent victim of a violent assault and did nothing to provoke the attack and sustained serious injuries, chances are you will win your personal injury case.

But just because you win the case, doesn’t necessarily mean that you will recover compensation for your damages.

Let’s imagine that the at fault Defendant is a homeless person. The Judge will grant judgment in your favour against the homeless Defendant for his/her assault on you. But how will the homeless Defendant be able to pay out on the Judgment. You cannot lien their home because the Defendant is homeless. The Defendant is not working for the sake of this fact pattern so you cannot garnish his/her wages. The Defendant doesn’t have a bank account for the sake of this fact pattern either. The Defendant’s sole source of survival is ODSP or Ontario Works. And if you are asking whether or not you can garnish ODSP or Ontario Works, the answer is “no“.

So that Judgment you secured in Court, after years of litigation is completely worthless (unless the homeless Defendant turns his/her life around and starts to earn an income).

What you are looking for in a Defendant is a person with assets, or who has a stable non cash job where we can trace the flow of income. The best asset to collect upon is real estate. But even real estate has its flaws.

For starters, if the Defendant is renting his/her property, and has no other properties, you cannot lien the rental. It’s not the Defendant’s to begin with. They are just renters.

Many property owners carry mortgages. Some carry more than one mortgage. Those mortgages will likely be registered on title before your judgment/lien. So you’ll have to get in line and wait your turn for payment. That means that when the time comes for the Defendant to sell his/her property, the first parties getting paid out are the mortgagees (typically the banks); followed by your judgment or lien. If there is any liquidity in the property, you will get paid. But payment will only be forthcoming when the property is sold which can take years. Your lien cannot force the sale.linkedin-2-300x300

Isn’t there insurance for acts of violence?

The same way that you can’t insure a suicide under a Life Insurance Policy; you won’t find a policy out there which will insure persons for their acts of violence or criminal activities. This is why recovering on assault claims can be so difficult.

Unlike a car accident or slip and fall where negligence is the cause of action, an assault is an intentional act of violence which is quite different than negligence or an honest mistake. Insurers will not cover a Defendant for his/her intentional (or unintentional) act of violence. Interestingly, there are insurance products out there which are meant to cover employers from acts of violence in the workplace. Situations like mass shootings and the lawsuits which may come against the employer in relation to those shootings.

How are you able to collect on an assault claim?

The most successful and lucrative assault claims have a few things in common. For starters the victim of the assault suffered very serious and life changing injuries. The next element is that the Defendant either has deep pockets (like a wealthy person or a person with traceable assets), or one of the Defendants is an institutional Defendant which contributed, facilitated or was in one way, shape or form liable for the assault.

These Defendants can range from restaurants, bars, nightclubs, universities, sporting venues, private or public events where security was an issue; prisons; or an overzealous staff member who went too far.

When the evidence suggests that the establishment didn’t have enough security; over served alcohol; they knew or ought to have known that the safety of the Plaintiff was being jeopardized; then a personal injury lawyer will be able to that party in to the assault to trigger the insurance policy.

Here is an example of where a prison was held liable for an attack by two indigenous inmates on a black inmate at the Sarnia Jail. The assault was unprovoked and appeared to be racially charged. The Honourable Justice R. Webster provided the following commentary about Jail’s role in the assault:

What disturbs me in this case most of, and I gather from my colleagues who sit here a lot of the time would agree with me, is the lack of supervision in this holding facility. The public, particularly people if you can make a distinction, particularly people who are incarcerated awaiting trial being subject to what was going on in this jail. The province should not be permitted to keep people in jail if they are not prepared to supervise it and to ensure that people are not injured while they are sitting around in a jail. This should not happen. Somebody should be doing something about it. I am not the person that should be doing anything about it but I am certainly able to comment on it. It fills me with concern for the people who are being held in custody under supervision of this province.

With judicial comments such as these, it’s not hard to see that the jail will bear some of the blame for a violent assault on an inmate. Even though the at fault inmate had no assets, the prison was able to respond to the claim and eventually pay out the injured plaintiff.

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