Toronto Injury Lawyer Blog
When my children were you, I would read them all sorts of bedtimes stories, as an parent would. One of my children’s favourites stories was “There Was an Old Lady Who Swallowed a Fly”.
If you’re not familiar with “There Was an Old Lady Who Swallowed a Fly”; it’s what you would call a cumulative tale.
A cumulative tale is a story where each new event or character is introduced alongside a repetition of all the previous ones in an expanding sequence. Cumulative tales have a rhythmic patterned build up which drives the narrative. They rely more on patterns and less so on plots.
There Was an Old Lady Who Swallowed a Fly goes a little something like this:
There was an old lady who swallowed a cow;
I don’t know how she swallowed a cow!
She swallowed the cow to catch the goat,
She swallowed the goat to catch the dog,
She swallowed the dog to catch the cat,
She swallowed the cat to catch the bird,
She swallowed the bird to catch the spider
That wriggled and jiggled and tickled inside her,
She swallowed the spider to catch the fly;
I don’t know why she swallowed a fly – perhaps she’ll die!
Often, personal injury cases are like cumulative tales.
Take your run of the mill winter time slip and fall case. Plaintiff slips and falls on an icy walkway. Plaintiff fractures their ankle and cannot work and needs 24/7 attendant care assistance.
The first legal analysis has nothing to do with the injuries or damages to the Plaintiff. Rather, the preliminary legal analysis is all about liability (who did it and who is at fault).
And this is where the cumulative tale begins!
Plaintiff sues the owner of the walkway.
It turns out that the walkway is owned by a consortium of real estate holding companies. Let’s call the RealCo A; RealCo B and RealCo C.
Plaintiff sues RealCo A, RealCo B and RealCo C.
The lawyer for RealCo A, RealCo B and RealCo C. advises that they had a property manager to inspect the premises, and to take care of the maintenance of the premises. This property manager is PropertyManager Inc.
Plaintiff now sues RealCo A, Real Co B, Real Co C. and Property Manager Inc.
Property Manager Inc. informs Plaintiff that they subcontracted the property management duties to Superintendent A
Plaintiff now sues RealCo A, Real Co B, Real Co C., Property Manager Inc. and Superintendent A
Superintendent A informs the Plaintiff that they contracted all of the winter maintenance to Winter Maintenance Contractor Corp.
Plaintiff now sues RealCo A, Real Co B, Real Co C., Property Manager Inc., Superintendent A and Winter Maintenance Contractor Corp.
Winter Maintenance Contractor Corp. informs the Plaintiff that they subcontracted all of the winter maintenance work to Mr. Plow Limited.
Plaintiff now sues RealCo A, Real Co B, Real Co C., Property Manager Inc., Superintendent A, Winter Maintenance Contractor Corp. and Mr. Plow Limited.
Mr. Plow Limited informs the Plaintiff that the person responsible was an uninsured contractor named Homer.
Plaintiff now sues RealCo A, Real Co B, Real Co C., Property Manager Inc., Superintendent A, Winter Maintenance Contractor Corp. Mr. Plow Limited and Homer (uninsured).
What was once a simple sounding winter time slip and fall case got messy, not to mention complicated VERY quickly.
This is not uncommon in personal injury cases in Ontario. Insurers are adept at “passing the blame” to other parties. That way, they will have another party, or other multiple parties to share in the liability and ensuing damages. There is no real downside to the insurer in doing this. Instead of a sum of damages ($100,000), being paid by one insurer, that cost is now divided equally; or based on a funding formula, between insurers. It’s a money saving tactic which has been used since the dawn of personal injury litigation. It’s common to see this sort of thing happen for a slip and fall case. It’s less common for it to happen in a 2 vehicle car accident case. But, if it’s a possibility, the it will likely happen.
There is a risk to the Plaintiff when multiple Defendants are involved. It’s important for the Plaintiff (their lawyer), to name all of the potential Defendants. Otherwise, a named Defendants will argue that they aren’t to blame and thus, aren’t responsible, or entirely responsible for the accident and the damages arising from the accident. This means that the Plaintiff might not be able to recover the entirety of the value of the claim. It also might present an obstacle in getting the case settled in a timely fasion.
Speaking of timely fashion, the other hurdle in getting multiple party cases settled is the complexity of getting all of the parties on the same page. Often, parties (including Defendants) have differing views of the theory of the case; the assessment of damages and the potential for resolution. It’s not uncommon that one Defendant is open to settlement, but the other Defendants are not. The other Defendants might take a completely different view of the case; or assess the damages in the case completely differently. When this happens, things in the case slow down dramatically. The only thing a Plaintiff can do is continue pushing the case further towards trial and continue building the case. Hopefully, the march to the steps of the Courthouse, couple with the evidence gathered might help in convincing the Defendant to view the case in a different light. It also might so happen that the Plaintiff settles the case with one Defendant, but not the other Defendant(s). The settling Defendant agrees that the case can continue, and agrees to settle the case based on a specified figure of damages and/or a specific degree of fault. This is called a “Perringer Agreement“. This can help a Plaintiff to move his/her case forward so that they can concentrate their resources on the Defendants which are yelling and screaming the entire way to the steps of the Courthouse. It also helps to potentially limit their cost exposure given that one of the Defendants is no longer in the picture.
