The short answer is that you must sue, and ask the court for a determination of liability. This is true whether you have suffered injury as a result of a motor vehicle accident, a pedestrian incident, or a slip and fall.
In essence, there are two parts to the issue: who is at fault, and what are the damages.
In order for the court to determine who is at fault (the first question), case law and legislation will be relevant. The British Columbia Negligence Act requires the person who caused damage or loss to another to make good the damage or loss. Another example would be the British Columbia Occupier’s Liability Act, which requires hosts to offer safe premises to visitors.
When assessing liability (or fault), lawyers often turn to the Supreme Court of Canada’s decision in Athey v. Leonati, a 1996 decision of the highest court in the country. The Supreme Court of Canada said “causation is established where the plaintiff proves to the civil standard that the defendant caused or contributed to the injury. The general, but not conclusive, test for causation is the "but for" test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant. Where the "but for" test is unworkable, the courts have recognized that causation is established where the defendant's negligence "materially contributed" to the occurrence of the injury. In some circumstances an inference of causation may be drawn from the evidence without positive scientific proof. The plaintiff need not establish that the defendant's negligence was the sole cause of the injury. The law does not excuse a defendant from liability merely because other causal factors for which he or she is not responsible also helped produce the harm. It is sufficient if the defendant's negligence was a cause of the harm.” In short, if you have injuries that would not exist or would not be as severe but for the actions of another, you can make a claim for damages.
In some cases, the plaintiff (injured person) will be partially responsible for his or her own fault. This is called contributory negligence. An example of contributory negligence would be a pedestrian who is struck while jay-walking, or a driver who was rear-ended after stopping suddenly (but had failing tail lights). Yet another example would be a slip and fall on stairs by a visitor who was wearing inappropriate footwear (for instance, sandals in snowy weather). Where there is contributory negligence, the plaintiff (injured person) may be required to share the loss caused by the defendant. If the court finds that both parties are at fault, but cannot reasonably apportion fault in precise percentages, the Negligence Act requires that fault be apportioned equally.
So, for instance, if you were injured in a slip and fall incident but were partly at fault (because you were involved in horseplay or were otherwise failing to take care for your own safety), your damages were $50,000, an equal portion of liability would mean that you would recover $25,000.
Since liability can be a tricky issue to determine, we invite you to contact David Greig or Renée Aldana at Greig, Wilson & Rasmussen LLP at 604-583-7917, to discuss your situation.
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