You can file a personal injury lawsuit when someone else injures you, negligently or intentionally. This type of lawsuit covers a wide range of cases, from medical malpractices to automobile accidents, slip-and-fall accidents, negligent security, defective product, and other instances where you’re injured because of someone else’s fault.
For you to successfully get compensated in your personal injury case however, you must prove 2 legal issues, to wit, liability and damages.
Firstly you must prove that the defendant was at fault (liable), and then you must prove that there’s an injury or loss (damages) due to that fault.
Proving the first helps to show that the defendant (person sued) has a case to answer at all, when that is established successfully, the plaintiff (person suing) can then proceed to make a case for the amount of damages (compensation) s/he’s entitled to.
The first part, liability, is what this article looks to discuss.
You can only say you’ve successfully filed a personal injury lawsuit when you can prove liability. And to successfully prove liability or nail the defendant to the injury, there are 4 facts you have to prove; they are known as the elements of a tort.
Successfully proving these 4 elements will indeed put you on your way to getting the compensation you deserve for the injury you’ve suffered due to no fault of yours, but of someone else.
1. Duty of Care
The first step to every personal injury case is to establish that the defendant owed the plaintiff or injured person a duty of care. That is, a moral or legal obligation to ensure his safety or wellbeing.
Proving duty of care doesn’t necessarily mean the plaintiff should be directly in care of the defendant – in fact they don’t have to know each other. In law, anyone that can be directly or indirectly affected by your action or inaction is deemed to be in your care.
As a basic example, while driving you owe every other road user a duty of care – to drive carefully and not endanger their lives. Hitting someone is breaching that duty of care to pedestrians.
For a company, it could be making sure their product is safe for the consumer’s use.
2. Breach of Duty
You must also prove that the defendant has breached that duty of care he owed you, just as in the driving example I shared earlier. When you successfully create the potential for the blame to be put on the defendant, then you’ve successfully proved breach of duty.
Breach of duty isn’t enough to prove liability, there must be evidence that the plaintiff sustained some form of injury – physical, emotional, financial, etc.
If you can’t prove injury, you might not be able to move forward with your personal injury lawsuit.
This is probably the most important part of a personal injury claim. You must be able to tie the breach of duty and the injury together.
That is, you have to prove that the defendant’s breach of duty caused the injury. It doesn’t suffice to just claim you had the injury surrounding the accident but not directly as a result of the accident.
For example, you slip on a shopping mall floor but were able to hold on to something and you didn’t hit your body against the floor or any other thing, it will be hard to claim you later had stomach ache, unlike falling and breaking a leg then and there.
Prove these 4 essential requirements or elements, and then you have for yourself a good personal injury case. You can then start thinking of damages.