Whether slipping on an icy sidewalk or being hit by a car as you cross the street, you don’t get to choose when or where accidents occur. A similar principle applies to the negligent property owner who did not remove the ice from the sidewalk or to the distracted driver who failed to look out for pedestrians. The party at fault in causing an accident cannot defeat a claim for compensation with a defense based upon a victim’s predisposition to being injured due to a pre-existing condition.

Thin Skull Rule of Personal Injury Law

An old injury or pre-existing medical condition could make someone more likely to suffer an injury in a subsequent accident than would a perfectly healthy person without the condition. For example, the victim of a car accident suffers a fractured forearm. At the trial, the negligent driver who caused the accident offers evidence that a previous injury weakened the bone and made it more susceptible to fracturing. The thin skull rule of personal injury law would prevent the defense from defeating the victim’s claim for compensation.

The thin skull rule stands for the principle that a party at fault in causing an accident and an injury cannot avoid responsibility for paying compensation simply because a pre-existing medical condition makes the victim more susceptible than others to being injured. The thin skull rule precludes a defendant or insurance company from seeking to limit damages by claiming the injuries suffered by the victim are more severe than would have been suffered by a victim without the same pre-existing condition.

Crumbling Skull Rule

The ability of an accident victim to be compensated under the thin skull rule has an important limitation. The crumbling skull rule relies upon the underlying purpose of personal injury law to restore the injured party to the position he or she was in prior to the recent injury. The party at fault in causing an accident is only responsible for additional harm caused to the victim and not for the effects of the pre-existing condition itself.

The distinction between a pre-existing injury subject to the thin skull rule and one under the crumbling skull rule has to do with stability of the existing injury. The thin skull rule is based upon a stable pre-existing condition that would most likely have remained that way were it not for the intervening accident caused by the party being sued for negligence. A pre-existing condition under the crumbling skull rule is one that was not stable before the most recent accident, so the defendant’s conduct accelerated its inevitable deterioration as opposed to causing it.

Evidence to Support a Claim for Compensation

Medical records pertaining to your pre-existing condition are vital to prove the nature of the condition and its stability prior to the most recent injury. The past medical records and the most

recent medical evaluation following an accident that aggravated a prior condition are essential to proving the validity of your claim.

Ontario Personal Injury Lawyers

The personal injury lawyers at Diamond & Diamond have years of experience successfully handling claims for compensation by people suffering injuries in accidents caused by the negligent conduct of other parties. If you suffer an injury and need to file a claim, you should speak to one of our lawyers. Call the Diamond & Diamond 24/7 injury hotline at 1-800-567-HURT or visit our website to speak to someone now. We offer free consultations and case evaluations to injury victims throughout Ontario.

The post How Does The Thin Skull Rule Apply To Personal Injury Claims appeared first on Diamond and Diamond Lawyers.

Whether you are injured in a car crash or by slipping and falling on debris left on the floor while shopping at your local grocery store, you could have the right to recover damages as compensation for your injuries. Protecting and enforcing your right to be compensated starts by having a clear understanding of your rights and obtaining the services of an experienced personal injury lawyer to assist you.

Proving negligence

Unless you were injured in a motor vehicle accident subject to Ontario no-fault law, personal injury claims require proof that another party’s negligence caused the accident. Negligence is based upon owing a duty to act reasonably so as not to cause harm to another person. A store owner, for example, has a duty to keep the premises in reasonably good repair to avoid causing injury to people entering them. The following are the four elements that must be proven to establish negligence and a right to recover compensation:

• Existence of a duty of care owed to the injured party
• Breach of the duty of care by the defendant, the party to be held responsible
• Damages suffered by the person making the claim
• The damages suffered were caused by the conduct of the defendant

The evidence needed to prove negligence depends on the facts and circumstances of a particular case. There are a number of situations under which a personal injury claim may arise, including:

• Vehicle collisions
• Medical malpractice
• Animal attacks and dog bites
• Premises liability, including slip-and-fall accidents
• Product liability arising from defective products

When any of these or other situations are the result of careless or negligent behaviour, a claim may be asserted against the responsible party.

Recoverable damages when you suffer personal injuries

Injuries suffered through the fault or misconduct of another party are not limited to those of a physical nature, such as broken bones, lacerations and head trauma. Your injuries could include emotional and psychological harm, such as post-traumatic stress disorder.

The damages awarded after a trial or through a settlement negotiated by your lawyer are intended to make you financially whole. Your compensation could include the following:

• Medical expenses, including the cost of anticipated future medical treatment
• Lost income, including future earnings lost or diminished due to the extent of your injuries
• Scarring and disfigurement
• Disability
• Pain and suffering

There is a limitation on the amount a court can award to you for pain and suffering damages. The maximum is $366,000.

Limitations imposed by Ontario no-fault in car accident claims

Personal injuries in Ontario car accidents are handled through no-fault insurance. If you are injured in a car accident your claim is filed with the insurance company issuing the policy on your vehicle regardless of who was at fault in causing the accident. Pain and suffering damages are not included when filing a no-fault claim.

No-fault insurance applies to most injuries you might suffer in a car accident. You do have the right to file a law suit, including a claim for pain and suffering, if you suffer a serious injury. Serious injuries are those which result in serious permanent disfigurement or serious impairment of a psychological, mental or important physical function that is considered to be permanent in nature.

Ontario personal injury lawyers

The personal injury lawyers at Diamond & Diamond have years of experience successfully handling personal injury claims for compensation for individuals. If you have been injured in an accident, you should speak to one of our lawyers. Call the Diamond & Diamond 24/7 injury hotline at 1-800-567-HURT or visit our website to speak to someone now. We offer free consultations and case evaluations to injury victims throughout Ontario.

The post What damages are recoverable in a personal injury claim appeared first on Diamond and Diamond Lawyers.

#AskKevinButler

The widespread belief that social media has become a part of everyday life is backed by statistics showing 3.4 billion people using social media around the world. Closer to home, almost 89 percent of the population of Canada uses the internet, and 64 percent of them have accounts on at least one social media platform. Ontario has the distinction of being the most connected province with 67 percent of its population on one or more social media platforms. The popularity of social media has a dark side when your posts are used against you in court.

Social media posts become evidence in court

Personal injury defence lawyers are using the popularity of social media to their advantage against personal injury victims filing claims for compensation. What you post on social media, even something as innocent as a picture of you laughing and having fun with friends at a party, could become evidence against you. If you claim to have suffered emotional trauma due to an accident, that picture of you at a party could be used by defence counsel in an effort to defeat your allegation of depression and loss of a desire to interact socially with your friends.

Even if you do not post anything on your Facebook account or other social media platform, the posts, particularly photos showing you engaging in activities that would be in conflict with the type or extent of injuries you claim to have suffered, can be used against you in court. For example, if you suffered a back injury and claim it prevented you from returning to work, a picture posted on Facebook by a friend and tagged to your account showing you helping during a home renovation project by carrying lumber up a ladder would provide defence counsel with evidence to disprove your claimed disability.

Distorting reality – the danger associated with posting on social media

The picture on Twitter of you partying with your friends that the defence lawyer wants to use against you may not tell the true story. If you are like most people, you could be grimacing in pain until someone points a camera at you and tells you to smile. The picture does not portray the truth of how you felt at the time, but once it is posted on social media, it becomes potential evidence.

Admissibility of social media evidence in Ontario courts

As a general rule, courts in Ontario only allow access to an injured party’s social media accounts if the defence can show it is relevant to proving a material fact or facts in the case. For instance, a request for access to photographs posted on social media contradicting the injured party’s claim of limited mobility was granted by a judge who agreed the pictures were of value in proving an issue in the case. The judge refused to allow the defence to use comments attached to the pictures because the invasion of the injured party’s privacy rights outweighed their use as evidence.

Protecting your personal injury claim

The best way to protect your personal injury claim from being harmed by what you post on social media is to refrain from posting. It might seem extreme to be told not to post, but something you might believe is safe and will not harm your lawsuit could be used against you.

An experienced personal injury lawyer can help

The personal injury lawyers at Diamond and Diamond have the experience and the knowledge of the law and the rules of evidence to protect your personal injury claim from social media or other evidence offered by the defence. Contact our 24/7 injury hotline at 1-800-567-HURT or visit our website to speak to someone now about your claim. Consultations are free, and we have offices located throughout Ontario.

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