Toronto Injury Lawyer Blog
Goldfinger Injury Lawyers receives a lot of inquiries from people looking to advance personal injury cases arising from assaults.
An assault can take place in a variety of ways, in a variety of different places, between a variety of different people.
Think of it as a game of “Clue“. One day it can be Colonel Mustard, in the Conservatory, with the Candlestick. The next, it could be Professor Plumb, in the Ballroom, with the Lead Pipe. There are millions of different scenarios.
What does it mean to “win” one of these personal injury assault cases?
First, it’s important to make a distinction between a criminal case, and a personal injury case.
There is no compensation awarded to the assault victim in the criminal case. The assault victim is an innocent victim of a crime who stands to win nothing from the outcome of the criminal case. If the Crown is successful in proving that the accused broke the law, then the accused will be punished according to the law. This punishment can take form in many different ways. Normally, we see jail time, parole time, restrictions on gun ownership, restraining orders and/or payment of a fine to Court. The Judge can also order a payment of restitution, which is NOT an award for pain and suffering to the victim of the crime.
On the other hand, a personal injury case is all about compensation for the innocent victim of the assault (known as the Plaintiff). Therefore, “winning” a personal injury case for assault means that the Plaintiff is successful in having the Defendant pay them money for their pain, suffering and other damages compensable at law. This is what it means to “win” a personal injury case.
If a Plaintiff’s goal in the personal injury case is just to be an annoyance to the Defendant; then; there are other less expensive ways of doing that. But, if that is their goal, and if money is of no concern to them, then so be it. Lawsuits are a pain and a grand annoyance to deal with for everyday people who are not accustom to litigation. This is why wealthy people like to use lawyers.
In a car accident case, there is insurance who protects and indemnifies the Defendant.
The same can be said in trip and fall cases; where the property insurance will protect and indemnify the Defendant for the damage in a lawsuit.
But, assault cases are different.
There is no insurance which will cover a Defendant for assaulting another person. Even if that assault was in self defence. There is no insurance which covers people for their criminal acts, or acts of physical aggression on other people. And, because there is no insurance for these types of cases (in most cases); this is what makes them difficult to take on.
There is a saying in civil litigation, of which personal injury law is a branch of. When you sue, make sure that you sue a party which has deep pockets. This means that it’s important to sue a party which you know has the ability to satisfy a judgment. If a Defendant does not have the means to satisfy a Judgment, then a Plaintiff will not see their compensation should they “win” and get a Judgment against that Defendant. A Plaintiff cannot get blood from a stone. The Judgment secured will carry no value. It will be a piece of paper which a Judge has signed without any real teeth because the Defendant has no assets to law the teeth upon. This sort of win is a moral victory. But those moral, or principled victories can be very costly to a Plaintiff. A Plaintiff can pay their lawyer thousands of dollars, and not see any return on their investment because the Defendant does not have the assets to satisfy a Judgment.
So, how does a Plaintiff get paid in a civil assault case?
That’s the million dollar question!
There are a few answers.
- If a Defendant has sufficient assets to satisfy a judgment against him/her, then a Plaintiff will get paid. The problem with this is that you cannot pick and choose the financial circumstances of the person who causes the assault. But, in theory, this is the most simple and direct method for a Plaintiff to get paid on such a case. That money comes directly out of the pocket of the Defendant himself/herself. Keep in mind that wages cannot be garnished is the Defendant is unemployed; and the ODSP and OW benefits cannot be garnished either. Also, a Plaintiff cannot put a lien on a Defendant’s rented apartment. The law doesn’t work that way because the Defendant is simply a tenant and not a property owner.
- Your personal injury lawyer looks for any angle to get insurance tied into the assault case. Did the assault take place at a bar/restaurant? Was there an over service of alcohol? Was there inadequate security at the bar? Who committed the assault? Was it an agent, servant, contractor or employee of a company which carried insurance? Was the assault caused by an overzealous bouncer or security staff member, or some other employee who was not properly vetted or trained by his/her employer? Where did the assault take place? At a school? At some sort of private establishment? Did the owner of that establishment had proper security in place? Was the assault avoidable in one way, shape or form? Did the owner know, or ought to have known of the Defendant’s aggressive behaviour or pattern or violent behaviour?
These are all questions which your personal injury lawyer should consider (and more).
Having said that, sometimes there is no reasonable prospect of recovery. Take the example of the assault being committed by a homeless person, couch surfer, or individual on Ontario Works or ODSP in a public setting, or a private setting like at someone’s home or apartment. Keep in mind that there is no insurance coverage for a criminal act. So, regardless of the veracity and aggression of the assault (like an assault with a deadly weapon), it’s irrelevant if the assault cannot be tied into an insurance policy in one way, shape or form. This is why stabbing cases, and shooting cases can be so difficult to handle. There is no form of insurance for a random act of criminal violence on a public street which was not reasonably foreseeable; regardless of the severity of the injury.
