Searching for a “car accident lawyer near me” can help the defendant raise affirmative defences while still denying the claims in the complaint. While not the first filing (motions for extensions or dismissals are more immediate), affirmative defences are necessary to your strategy. It can provide leverage in settlement negotiations or lead to a favourable outcome.
Key Takeaways:
- Even if a person is primarily responsible for their own damages in a casualty (up to 99%), they may still be able to recover some compensation.
- If the person misses the deadline to file a suit, the appellant can argue that the claim is “time-barred,” and the court will dismiss the proceedings.
- The most common arguments for failure to mitigate damages are that the plaintiff failed to seek appropriate treatment or follow professionals’ instructions.
What is Affirmative Defence?
An affirmative defence in a suit that acknowledges wrongdoing but justifies the defendant’s actions. It can also involve counter-arguments or evidence not raised by the plaintiff.
The laws governing this vary by jurisdiction and require prompt actions. One exception is the lack of subject matter jurisdiction, which means the court lacks the authority to hear the suit.
Sample Lawsuit
In the Hall v. Hebert case, the Respondent (Jean Hebert), the owner of a high-performance vehicle, and his passenger (appellant, Vincent Hall) were intoxicated. The vehicle stalled while driving on a poorly lit, gravel road with a steep drop-off. Unable to find the keys, the respondent attempted a “rolling start.” At the appellant’s request, despite knowing the appellant had consumed numerous beers, the respondent allowed them to drive. The automobile subsequently crashed and resulted in head injuries for the appellant.
The trial court found the respondent 75% liable and the appellant 25% liable. However, the Court of Appeal reversed this decision.
Justice Sopinka argued that no duty of care arose in this suit. He emphasized that criminal behaviour might negate a duty of care when it indicates that the plaintiff could not reasonably expect the respondent to act with care. He further reasoned that the plaintiff’s request for permission to drive under impaired circumstances eliminated any reasonable expectation of care from the respondent.
Ultimately, the court concluded that the liability in this case should be divided equally between the parties due to shared responsibility for the circumstances leading to the damage.
What Are the Common Defences Edmonton Personal Injury Lawyers Can Appeal
An Edmonton car accident lawyer can work to reduce or completely avoid the compensation a plaintiff may receive. If the respondent successfully establishes the defence, the plaintiff can challenge and refute it. Common types used by a personal injury lawyer in motor vehicle accidents include:
Comparative Fault
Imagine you’re driving down the road when a vehicle pulls out of a stop sign right in front of you. You slam on the brakes, but the collision is unavoidable. In this scenario, the other driver is at fault. But what if you were speeding slightly? That could introduce a concept called comparative fault.
Since both parties share some responsibility, courts reduce the amount of compensation based on the fault assigned to each party.
This means that a plaintiff can still recover a personal injury claim even if they are largely responsible for their own damages—up to 99% at fault. While a negligent accused cannot completely escape liability by arguing that the plaintiff contributed to their injuries, the accused can reduce the damages they must pay. For example, if the court determines that you are 50% at fault for your injuries, they will reduce your compensation by 50%.
Assumption of Risk
What if you knowingly put yourself in a risky situation? This defence is if someone willingly engages in an activity with inherent dangers (like driving in severe weather or ignoring a car’s mechanical issues). They can’t claim full damages later when something goes wrong.
For example, you drive in a snowstorm, knowing the roads are slick. If a collision occurs, the defendant might argue that you “assumed the risk” by driving despite the dangers.
- Express Assumption of Risk: When a person explicitly agrees to take on the risk, such as signing a waiver. Think of those releases you sign when renting a snowmobile or bungee-jumping equipment.
- Implied Assumption of Risk: Happens when someone implicitly accepts the risks, like driving without proper tire maintenance in harsh conditions.
Failure to Mitigate
Once a crash occurs, the injured party must take steps to mitigate their losses. For example, the plaintiff may have been in a vehicular crash but waited months before seeking medical attention or didn’t follow through with prescribed treatments. The defence might argue that the victim’s injuries could have been less severe if they had acted promptly.
An experienced car accident lawyer may say, “You made it worse by not taking care of it.” This can impact the damages the injured party can recover. If it is proven that the injured party didn’t do everything they could to limit the harm, they may not receive compensation for the full extent of their injuries.
Procedural Defenses (Includes Statute of Limitations)
Timing is necessary, and motor vehicle cases are no different. Procedural defences focus on technicalities related to the lawsuit itself. One of the most significant types is the Statute of Limitations.
Each jurisdiction sets a specific period for a person to file a lawsuit after an incident. If the person doesn’t bring the lawsuit to court within that time frame, the defendant can argue that the claim is time-barred, and the court will dismiss the car accident claim.
In Canada, this period is two years from the date of the incident. However, it can vary depending on where you are and the specifics of the lawsuit. If you miss this deadline, it could be a major setback, so get legal advice from a personal injury law firm as soon as possible after an automobile collision. Don’t delay—timing really is everything.
Other Examples of Procedural Defences:
Lack of Jurisdiction | The court may not have the authority to hear the case if the incident occurred outside its jurisdiction. |
Improper Service of Process | Someone may not have properly served the lawsuit on the defendant. |
Failure to state a claim | Not adequately state a valid legal claim |
Pre-existing Damage or Condition
If the defendant can prove that the claimant’s injuries existed before the car accident injuries, they may use the pre-existing condition defence. They’ll argue that the incident didn’t cause all (or even most) of the injuries. Rather, the crash just exacerbated them. Even an insurance company can use this tactic.
For instance, a claimant had a previous back problem, and the mishap aggravated it. The defence could claim that the incident only worsened the pre-existing condition rather than causing new injuries. This might mean the claimant cannot get full compensation for the damage but only for the additional harm caused by the crash.
Pre-existing Conditions Samples:
- The claimant has a long-standing history of knee arthritis. After the mishap, the defendant argues that any worsening of knee pain was due to the pre-existing condition, not the casualty.
- The claimant suffered mild head pain years ago. After the collision, the defendant argues that the ongoing symptoms (like headaches or dizziness) are related to an old injury and not caused by the crash. This may reduce the liability.
- Previously injured shoulder in a sporting mishap. After the crash, the defendant claims that the shoulder pain and limited mobility were a continuation of a pre-existing condition and not due to the collision.
Why Does All This Matter
Knowing what mitigation the other party might use helps you or your experienced personal injury lawyers prepare a stronger case. If you are the defendant, it can also reduce your reliability. You need an experienced injury lawyer to help you with your case.Comparative Fault | Helps determine who’s truly responsible. |
Assumption of Risk | Warns about willingly accepting known dangers. |
Failure to Mitigate | Stresses the importance of acting quickly to reduce harm. |
Procedural | Could cause miss out on a claim if you don’t act within time limits or the right procedures. |
Pre-existing Conditions | Limit how much compensation the claimant can get. |
These are just a few common affirmative justifications for an accident lawsuit. Every case is unique, and the specific defences that apply will vary depending on the circumstances. You need the best car accident lawyer that can guide you from start to finish.
Final Thoughts
Affirmative defences reduce or eliminate liability. These defences can be quite technical, but understanding them gives the defendant a leg up in the event of a legal battle.
If you find yourself in a car accident lawsuit, don’t hesitate to contact Sidhu Personal Injury Lawyer Edmonton. We can help you understand how these defences apply to your specific case and give you the best chance at success. Contact us for a free consultation.
Frequently Asked Questions
What is the most common lawsuit defendants use for car accident victims?
The most common car injury cases involve the deadline for filing a lawsuit. These laws are important because they require filing claims while evidence is still reliable and available. Statutes of limitations also protect people from facing charges indefinitely.
Can your lawyers use sudden emergency in your case?
Your lawyers can use this strategy to avoid legal responsibility by proving the following:
- Unexpected and Sudden Situation: Faced with an unforeseen and abrupt situation.
- No Fault: Not responsible for creating the situation.
- Reasonable Action: Response was consistent with what a reasonable person would have done in the same circumstances.
Can faulty road conditions be used in a defendant's case?
Your lawyer may claim faulty road conditions, such as poor lighting, potholes, inadequate signage, or obstructions, caused the mishap.
The existence of these conditions does not automatically absolve you from liability. Your attorneys must demonstrate that you could not have reasonably avoided the hazardous condition and that it was the sole cause of the casualty. If successful, it could prevent you from receiving compensation for your injuries and damages.