Injured accident victims in personal injury cases will not get the benefit of the doubt.
A big part of that is because how our legal system works.
At law, an injured Plaintiff is required to establish their case to a Judge and Jury. The Plaintiff is required to bring evidence to the Court to prove that their allegations are in fact true. Without the evidence, the allegations are just that. Mere statements of demand, without any facts or evidence to back them up.
At trial, every Plaintiff will get up on the stand and suggest that they are in tremendous pain; and are enduring tremendous suffering.
But those statements aren’t enough. Without the evidence to back them up, they are just that. Self serving statements which will carry little weight at trial.
That’s not to say that a Judge won’t believe you; or won’t empathize with you. But a Judge will need more to make his/her ruling and award a Plaintiff the damages which s/he is seeking.
Explained another way: A Plaintiff cannot demand $1,000,000 and expect the Judge to award him/her $1,000,000 if there is no evidence to substantiate the claim.
These concepts are very important.
In my over 20+ years of practicing personal injury law, you would be amazed by the number of Plaintiffs who expect the law to work differently. Expectation of how are legal system works, and of how damages are proven does not mesh with the reality of how our system works. There is an expectation from many people that simply because they have been involved in a serious accident means that they will automatically be compensated for millions of dollars, without question or reservation.
That could not be further from the truth.
The harsh reality is that the legal system in Ontario is very difficult on Plaintiffs in personal injury cases. In fact, the way that the legal system works is that defendant insurers are afforded more protections than the injured Plaintiffs themselves. This seems contradictory given that the Plaintiff is the injured party and the Defendant caused injury to the Plaintiff. So why should more protections be afforded to an at fault Defendant as oppose to an injured, innocent accident victim who was simply in the wrong place, at the wrong time. This inequality of rights is magnified in car accident cases in Ontario where defendants are entitled to a secret credit of over $40,000 per claim regardless of fault (statutory deductible), and also entitled to the benefits of a threshold defence for the Plaintiff’s injuries (again, regardless of fault). This means that a Defendant could have been drunk driving, texting, and ran a red light; yet still; they will have the benefit of two very large statutory defences in order to escape a civil damages verdict at trial. Seems terribly wrong to many, but those are the cards which we have all been dealt in Ontario.
Back to a Plaintiff establishing his/her claim at trial.
One of the simplest ways to break things down for clients and for the general public is to explain to them that litigating a personal injury case is much like baking a cake; only far less delicious! We use cakes as an example because who doesn’t like a delicious cake? If you aren’t a cake person, you can replace cake with cookies, croissants, or any other yummy dish.
A great cake requires ingredients. And those ingredients need to be quality ingredients. Not having the right ingredients for the cake; or having poor ingredients will equate to a poor cake.
Think of your personal injury case as you would the cake which you are baking. And think of the evidence in your personal injury case the same you would for the ingredients for your case. Without evidence, there is no personal injury case. And if that evidence is poor, then the personal injury case will be poor.
But what constitutes poor evidence in a personal injury case? That’s a great question because it can be hard to decipher between good evidence vs. bad or unhelpful evidence.
Good evidence in a personal injury case would be records to help substantiate and establish the accident itself, and show a causal tie between the accident and the ensuing injuries. The motor vehicle accident report, the police officer’s notes, the clinical notes and records from the hospital, the treating doctors, rehab clinics, tax returns, OHIP Summaries, the accident benefit file etc. All of these pieces of evidence are important to establish a personal injury case. These pieces of evidence become even strong if they can tie the Plaintiff’s injuries to the accident itself; and establish that the Plaintiff is very injured.
Bad evidence in a personal injury case is different. It will do the opposite of what the good evidence which we previously discussed established. Bad evidence will serve to defeat, or to weaken a Plaintiff’s case. The Defence will see this bad evidence, as “good evidence“, as it helps them to defend the personal injury claim. If the claimant was involved in multiple accidents before the subject accident; if the Plaintiff had an extensive pre-accident history; if the motor vehicle accident report shows that the accident was the Plaintiff’s fault. All of this evidence will serve to defeat or to weaken a Plaintiff’s personal injury case. Defendants will present, and rely on this evidence at trial.
But this evidence cannot be ignored. It will surface, one way or another, whether a Plaintiff likes it or not. It’s best for the Plaintiff to be prepared for this “bad evidence” to arise, to best strategize on ways to refute it, or to explain it. Sometimes, a rational explanation regarding that negative evidence goes a long way to assisting a Plaintiff’s claim. But, if a Plaintiff is not prepared to explain, or to deal with that evidence, it will be problematic and will only serve to weaken a Plaintiff’s case.
A case with no evidence is not going to go anywhere. It’s like baking a cake with no ingredients. But, look on the bright side. At least that cake with no ingredients will be low in calories!