COVID-19 Update: How We Are Serving and Protecting Our Clients

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Loosening of Pandemic Restrictions and Personal Injury Claims

Ontario is scheduled to drop most mask mandates by March 21, 2022. Whether or not this is the right move or not has nothing to do with being a personal injury lawyer; so I’ll just stay in my lane.

But, in creeping closer to this date we have seen an uptick of assault calls surfacing at our law firm. These assault claims are no uncommon, only we have seen more and more of them as the pandemic has dragged on.

It has become apparent to me that over the course of the pandemic we have forgotten how to interact with one another and share public spaces. It seems that more of us have a sense of entitlement, together with a disregard or a lack of respect for the safety and security in public places. In other words, we forgot how to share space and how to interact in public groups. This is something that will take time to re-learn. But, we will get there.

In the meantime, what do you do when a stranger assaults you? Do you have a personal injury case? And if so, how do you pursue that claim?

Let’s assume that you and I are out for a night on the town. At the end of the evening, we are assaulted by a group of strangers on the street. We both sustain serious personal injuries.

We report the assault to the police and lucky for us, the police are able to track down the assailants. Had the police not been able to track down the bad guys, we wouldn’t know who to sue. This often happens with assault claims. Plaintiffs think that there is a large CSI style crime data base for all of the bad guys in the world and through some crazy DNA tests we can track them down. That’s not the case when it comes to personal injury cases. While personal injury lawyers do have some tools at our disposal to track down Defendants we always need a starting point (like a license plate number). But without any information on the Defendants other than it was a gang of unidentified people, chances are you won’t be able to track these people down. This isn’t a good recipe for a personal injury law suit.

But, we now know who these people are because the police successfully tracked them down. That means that we can sue the bad guys for the damages which they inflicted upon us.

Chances are we will win a judgment against these Defendants given that it was an unprovoked assault which caused serious personal injuries.

But how will we ever collect on that Judgment?

There is NO INSURANCE to individuals for assault claims save in rare circumstances. That means that no insurance will cover the criminal actions of an individual purposefully striking another individual . So if you punch someone in the face or beat a person up, an insurance company will not cover you for those intentional acts.linkedin-2-300x300

Given that the Defendants are uninsured, they would need to pay out on any potential judgment out of their own pocket. Often the pockets or random individuals don’t run very deep; and they don’t have assets to seize. The exercise for a Plaintiff and his/her personal injury lawyer isn’t necessarily winning the case. Rather, it’s how the collect upon a judgment where there are no tangible assets. Defendant could be on ODSP, OW or CPP Disability. Defendant could be a renter. Defendant could be unemployed. Defendant could be in significant debt. We call these Defendants judgment proof. I suppose that’s a good term at law if you’re a Defendant. But it’s a bad term in life because it’s a public declaration that you’re broke and without assets. And it’s for these very reasons that we tell people in jest that if you’re going to get assaulted by a random stranger, make sure that random stranger is rich. Because otherwise you will have a hard time collecting on any potential personal injury lawsuit.

Often Plaintiffs want to tie an employer or property owner to the assault claim. This is possible, but the facts need to line up for it to happen.

A Defendant employer is NOT vicariously liable for the intentional criminal acts of his/her employee; except if that employer knew or ought to have known that the employee was a danger to its customers or to members of the public. These are fact specific cases. If an employer is found to have known or ought to have known that his/her employee was a danger to customers or to members of the public, then the employer will be on the hook. It will give the Plaintiff deeper pockets from which to claim from in their assault case. But be forewarned: these cases are fact specific and are the exception and not the norm. Examples of employers getting tied into being vicariously liable for the intentional criminal acts of their employees can include but aren’t limited to:

  • Employer failed to conduct a proper background check on his/her employee
  • Employer failed to train or to properly train the employee on de-escalation or how to deal with aggressive or confrontational situations
  • Employer knew or ought to have known of the employee’s aggressive behaviour and did nothing to address it
  • Employer hid or failed to report previous instances of aggression or violence
  • Employer fostered a culture of violence or abuse to customers or members of the public
  • Employer created an environment which led to abuse or fostered an environment which facilitated abuse (we often see this in sexual assault cases)
  • Employer gave the employee weapons and encouraged its employees to use these weapons without any or improper training on violent or aggressive customers or members of the public

But if it’s one random instance of violence by an employee against a customer, chances are it will be difficult to get the employer tied into the claim. Without tying in that vicarious liability to a deep pocket like an employer or a property owner, the likelihood of financial recovery for assault cases by a stranger remains problematic. That’s not to say that the case won’t succeed or a Plaintiff won’t be successful in winning a Judgment. It’s that collecting upon that Judgment will prove to be difficult if there is no insurance in place and no deep pocket to collect from.

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