By Lawrence Mandel
Published in The Driver Magazine on April 7, 2009
This article deals with the issues of fault and contributory negligence in a motor vehicle accident.
We often hear lawyers use the legal term ‘tort’, which is defined as a legal wrong, and if you suffer damages as a result of tortious activity you have a claim for compensation for them.
But how do we handle compensation for a person who is at fault in a motor vehicle accident?
Well, the injury claim of that person would be reduced by the percentage of fault attributed to him/her.
For example, if the injured person was found to be 25 per cent at fault for the accident, then the person would have to suffer a 25-per-cent reduction in his/her damages.
If the injured person was not wearing a seatbelt, then his/her claim might be reduced by five to 25 per cent on account of contributory negligence.
Suppose another driver makes a left hand turn in front of your vehicle. If that is the case, the person making the left hand turn is likely at fault for your injuries, because he/she failed to make the turn in safety or, alternatively, failed to yield the right-of-way.
On the other hand, if you were proceeding over the speed limit, you may have contributed to the injuries by driving at an excessive rate of speed, notwithstanding the fact that the other driver made the left hand turn in front of you.
What this means is that your claim may be reduced by the amount of your contributory negligence.
In cases such as these, the contributory negligence often amounts to 25 to 40 per cent against the driver who was speeding and 60 to 75 per cent against the driver who made the left hand turn.
However, these are not hard and fast rules, and compensation in every motor vehicle accident will depend on the facts and circumstances of that particular accident.
Often, it is very difficult to determine who was liable for the accident.
For example, suppose two motorists are heading in opposite directions on a narrow highway at night. The highway has one lane for northbound traffic and another lane for southbound traffic. Both motorists are heading up a hill from opposite directions and crash head-on at the top.
Police might not be able to determine who was on the wrong side of the road. It’s obvious that one of the motorists, or both, crossed the centre line because if each motorist were in the proper lane the accident would not have occurred.
So who’s liable?
Often, if the injuries are serious enough, accident reconstruction experts (engineers) will be retained to assist in determining, through scientific analysis, which vehicle was on the wrong side of the road.
Here’s another example.
Suppose you had an accident at an intersection with a traffic light. One vehicle was traveling east, the other was heading north. Both drivers maintain they had green lights, but that can’t be the case unless the lights were not operating properly.
If there are no witnesses to the accident, and you must simply rely on what each driver says, the case is difficult, to say the least. Much will depend on who is believed.
A case like this will often be settled on a 50/50 basis - that is, each driver is assessed equal responsibility for the accident because there is a fear that one or the other could lose 100 per cent if it went to trial.
Most cases do not end up at trial. They are settled out of court on a compromised basis.
This is sensible for a number of reasons, namely:
- any party could lose 100 per cent
- if you lose, you may have to pay a certain amount for legal fees and costs which could be very expensive depending on the length and complexity of the action
- there is an aggravation in going to court and that is worth something to avoid
- it could take three to four years or more to get to trial
- a court judgment can be appealed, whereas a reasonable settlement can not normally be appealed successfully
- it could take another two years for the appeal to be heard.
Before any case is settled, lawyers for each side thoroughly investigate the facts and circumstances and the losses that were alleged. In other words, the settlement procedure involves a lot of work because lawyers want to make sure they have all the information when they enter into negotiations to settle a case.
You can only settle the case once. Therefore, it has to be done right the first time.
Lawrence H. Mandel is a personal injury lawyer with Thomson, Rogers Barristers and Solicitors. He has been with the firm more than 45 years and, among other things, has represented victims of car accidents, airplane crashes and train derailments.
