Tort claim? What it means and why it’s your gateway to personal injury justice
By Pace Law | August 28, 2019
‘Pursue a lawsuit to get the compensation you deserve.’ You will have heard and read this phrase many a time. It is well known that to obtain adequate compensation for your serious injury, recourse to the legal system may be the only option. But what is this mysterious lawsuit?
The majority of personal injury cases arise as a result of tort. In the simplest terms: if a person’s negligent acts or failure to perform certain acts (omission) result in injuries to you, that negligence and the resultant injuries establish the basis for a tort claim. You are then entitled to commence legal proceedings to be compensated appropriately.
In this article, we will break down what a tort claim is to help you understand the background to personal injury claims.
What is a tort claim?
A tort claim is a lawsuit filed to claim compensation for the injuries you have suffered in an accident. This compensation claim is wider than what you are entitled to from an insurance company. Therefore, many people consider a tort claim to be the pursuit of just indemnification.
There are four basic elements to tort:
- duty of care
- breach of duty of care
Let’s explain this with an example of a tort claim, resulting from a slip and fall on the sidewalk of retail premises.
- Duty – The owner of the premises has a duty to keep sidewalks clear of snow and ice.
- Breach – The owner failed to salt the sidewalk, despite knowing that hundreds of people will be walking on the icy surface.
- Causation – You slip and fall on the sidewalk as a result of the uncleared and unsalted ice.
- Injury – You fracture your arm falling on the treacherous sidewalk.
That is a tort claim in a nutshell. Naturally, there are standards that must be met, as well as defences to the claim. When examining a tort claim in Ontario, courts will look at the duty of care from the point of view of a reasonable person; whether the harm was foreseeable, and whether or not there exist exacerbating or mitigating factors.
Remember, tort compensation will be in addition to any accident benefits and insurance claims.
Tort vs crime: What is the difference?
In considering the difference between a tort and a crime, the essential fact is that a tort is a civil law action, and does not involve criminal law. The goal of a tort claim is to indemnify the victim who has been harmed by another person’s negligence; it is not intended to punish the other person (other than monetarily).
However, an incident can be both criminal and tortious. For example, A car accident—in which the at-fault driver is under the influence of alcohol or drugs—will result in the police carrying out a criminal investigation, while the victim is entitled to pursue a civil action: a tort claim.
Torts may be either intentional or unintentional. An intentional tort involves someone’s deliberate action causing someone harm; moreover, an intentional tort may also lead to criminal charges. Therefore, it’s not always tort vs crime, sometimes they go hand-in-hand. In most instances, personal injury cases are unintentional torts. Motor vehicle accidents, slip and fall incidents, and medical malpractice all cause harm to the victim—but it is unintentional.
What does a tort claim include?
A tort claim is a claim for damages. This is the monetary award (compensation) that will indemnify you for the harm that the accident has caused. Tort claims are a preferred option in the aftermath of an accident because you can claim and receive damages that compensate the real loss you have suffered. Insurance claims are often limited in scope and will not compensate you for non-pecuniary losses such as pain and suffering, loss of present and future income, and disruption to family life.
As an example, here are some types of compensation you can claim in a tort claim in Ontario:
- Pain and suffering
- Loss of enjoyment of life
- Loss of income (present and future)
- Rehabilitation and medical care in the future
- Caregiving costs
- Other out of pocket expenses
Essentially, a tort claim lets you safeguard your standard of living and your future. You should not have to suffer the consequences of someone else’s negligence without being properly compensated. There is a threshold for how much a court can award for non-pecuniary (non-quantifiable) damages. However, that does not mean that the courts do not recognize and uphold remedies for such losses. Speak to your Toronto personal injury lawyer about your tort claim in Ontario to calculate compensation for pain and suffering you can expect.
What are some examples of tort cases?
Tort claim examples are the best way of understanding how tort law works. In the list below we are outlining a few tort claim examples from common personal injury claims that we receive. This is not an exhaustive list by any means; but, it goes to show how tort claims address real world accidents.
- Car accident – A driver runs a stop sign in a school zone and hits you.
- Slip and fall – A loose railing causes you to fall from stairs on public or private premises.
- Brain injury – Construction material falls on your head while walking on a public sidewalk.
- Cycling accident – Someone opens a car door suddenly, causing you to crash (‘dooring’).
- ATV accident – While riding in an ATV park, the throttle sticks open due to poor maintenance and you are injured in the resultant accident.
- Dog bite – A pet owner negligently lets an agitated dog off its leash in a crowded environment and it bites you.
How no win, no fee helps you get justice
“No win, no fee” has helped thousands of people access their right to fair compensation. Legal proceedings can constitute an unexpected and onerous financial burden for such costs as hourly legal fees, experts’ fees, and administrative charges. That burden is a major risk – given the fact that your case may not succeed, and you will not receive any compensation. When your lawyer offers a contingency arrangement—’no win, no fee’—that risk and the associated fear is assuaged greatly.
It’s a simple premise: if you are not awarded compensation or the case is not settled successfully, your personal injury lawyer in Toronto will not receive legal fees.
In a contingency fee arrangement, legal fees and costs incurred in your case will be recovered as a percentage of the compensation you are awarded. Typically, this will form part of the retainer your Toronto personal injury law firm will sign with you. What this percentage will be also varies with the complexity of the case, as well as the time and resources it will require to be completed.
A tort claim is simple in its basic intent: make sure that the person who has suffered harm is adequately compensated. As an accident victim, you can make a much more pragmatic claim under tort than with an insurer. Many personal injury accidents have an element of tort – after all, you are injured because someone failed to take reasonable precautions that could have prevented the accident.
To understand if your accident features the elements giving rise to a tort claim, contact Pace Law Firm immediately. Our team will advise you on your best options; we will help you file and pursue a personal injury claim that will maximize your compensation.