Sep 14, 2020

You may have heard of a car accident lawsuit involving an injured child who sued their parent when the parent was at fault in causing an automobile accident that resulted in serious injury to the son or daughter. Similarly, a person injured in slip and fall accident may bring a lawsuit against another family member if the family member owns, or is responsible for managing, the property where an unsafe condition caused the injury to occur.  At first consideration, these may appear to be strange, or even harsh, circumstances, but they are a product of Ontario laws governing negligence claims and are the reason we carry vehicle and property insurance to protect ourselves against liability.

Under Ontario law, if you are injured in a motor vehicle accident, you may sue the person who caused the crash in order to recover financial or non-economic losses (such as pain and suffering) you suffered due to your injury.  This system is designed to facilitate necessary medical and rehabilitation treatments that help accident victims recover from their injury and also prevents accident victims from being burdened by expenses and lost wages they incurred as a result of an injury that wasn’t their fault.  

Although the ‘at fault’ driver who caused the injury is typically named as the ‘defendant’ in a car accident lawsuit, in most cases, it’s actually the vehicle insurance company who pays the awarded damages, minus any deductibles.  Further, it’s the insurance company who typically decides whether to negotiate a settlement with the injured person or go to trial, and it’s the insurer’s lawyer who typically argues the case on behalf of the named defendant.

Essentially, an injured person may have no option but to name the family member who was responsible, as the defendant in their personal injury lawsuit, if they wish to recover damages for all of the losses they incurred.  When the lawsuit is successful and the plaintiff receives the compensation they seek, the family member (or another defendant) commonly doesn’t pay any of the settlement (although a person who caused an accident through negligence will likely see their insurance rates increase).

Bon Rathwell Howland v. The Estate of Pamela Howland (2019) is a lawsuit that grandparents brought on behalf of their 5-year-old grandson.  The child sustained a serious brain injury and orthopaedic injuries in a tragic car accident that also took the life of both his parents.  The accident occurred during heavy rains when the Howland car, which had bald tires, slid into the lane of another vehicle, and the Howland Estate admitted liability for the accident.  The boy’s injuries, particularly the traumatic brain injury, are very serious and he was expected to require care and various types of support until his early 30’s.  Due the severity of the injury and the boy’s care needs, the jury awarded the young boy close to $800,000 in damages, including $350,000 in general damages for pain and suffering.

In Barron v. Barron (2003), a woman brought a personal injury lawsuit against her husband after she sustained injuries in a single-car collision.  The plaintiff’s husband lost control of their car and crashed into a ditch after he allegedly took a drink of coffee and began coughing and choking, causing him to become light-headed and lose consciousness. Several witnesses gave testimony that they had, on various occasions, seen Mr. Barron coughing and choking after taking a sip of drink of coffee and if driving, he had to pull over until the coughing and choking had subsided.  

The judge found that the defendant knew, or should have known, that drinking coffee could lead to violent coughing episodes and light-headedness, and would impair his ability to control the vehicle.  Despite this foreseeable danger, the defendant continued to drink coffee while driving and in doing so, he failed to take reasonable care to protect his passenger and prevent the accident.  However, the judge found that Mrs. Barron was partially responsible (and 10 percent liable) for her own injuries since she knew about the risks of driving with her husband while he was drinking coffee. Accordingly, the previously agreed-to damages awarded to Mrs. Barron by the defendant’s insurer were reduced by 10 percent.

Waldick v. Malcolm (Ont. C.A.) is a case involving a man who slipped and fell and was injured on a slippery and icy driveway, at a farm property leased by his sister and brother-in-law.  The Ontario Court of Appeal upheld a previous Court decision finding the plaintiff’s sister and brother-in-law liable for the plaintiff’s injuries, since they did not take reasonable care by salting or sanding the driveway, at least in the area where visitors were likely to walk to reach the farmhouse door.

At Dietrich Law, our legal team has vast experience representing clients in personal injury actions against insurance companies.  If you were injured and are considering making a claim against the negligent party, talk to a Kitchener Waterloo injury lawyer at Dietrich Law today.  Initial consultations are free and provide a great opportunity to ask legal questions about your case, and will help you decide how next to proceed.


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