- March 8, 2021
- Posted by: azimi
- Category: Personal Injury
Learn about basic terminology, court documents and time requirements involved in a tort claim
It is essential for prospective clients to get a clear understanding of legal words and concepts commonly used in a personal injury case.
A tort is an actionable wrong that arises from an action or inaction, by one or more persons, against one or more persons. If a single person committed the tort, they are called the tortfeasor, and, if multiple people did, they are called joint tortfeasors. If the injured party brings a personal injury claim, they are called the plaintiff and the tortfeasor is called the defendant.
The proof of a tort involves two stages. The first is to determine whether the defendant is liable. And the second stage is to determine whether the plaintiff has suffered damages. In order for the claim to be successful, the plaintiff must be able to establish both in the affirmative.
Consider the situation where a man trips and falls on a bank’s premises. The surveillance footage reveals that he tripped over his feet and that there had been no spill or obstruction in his path. Although he sustained an injury, he does not have a claim. This is because the bank, the defendant, was not responsible for his injury.
A successful claim results in compensation. It is important to keep in mind that the purpose of compensation is restitutionary – that is, to place the plaintiff in the position he/she would have been in had the tort not occurred. Its purpose is neither punitive – that is, to the punish the defendant – nor to provide the plaintiff with a windfall – that is, an unexpected large sum of money.
The commencement of a claim is done by serving and filing a Statement of Claim in court. If the claim is for an amount in excess of $35,000, it is filed in the Superior Court of Justice. If it is for an amount less than $35,000, it is filed in the Small Claims Court.
A claim must be filed within the limitation period. This is a legally specified period of time after which a claim is defeated. A tort action must be commenced within two years of the date the tort occurred although, if the tort was not discoverable on the date it occurred, the limitation period is two years from the date the plaintiff ought reasonably to have known that the tort had occurred.
Certain torts, however, involve further time requirements. For instance, in a slip and fall case, the limitation period is two years from the date the accident occurred, but the Municipal Act additionally requires the injured party to deliver written notice of their intention to sue to the municipal body within 10 days of the accident.
The person who pays for the tort is the defendant’s insurer, if they have an insurance policy and if that policy’s coverage extends to the incident in question. The insurer will pay any settlement or court award. If the defendant either is not insured or their insurance policy does not cover the wrongdoing, and if they do not have any assets or means, any award will hold only nominal value.
Consider an assault during a neighborly dispute. The tortfeasor has homeowner’s insurance. However, based on the circumstances, his insurer determines that his wrongdoing was intentional and therefore, is not covered. Insurance policies usually only cover negligence – not intentional conduct. Thus, the tortfeasor would be personally responsible for paying for his tort.
Anyone may sue for damages if they have sustained an injury caused by another.