Monday, 14 May 2012 14:28
If you have been injured in an accident, the first step it determining if someone else was at fault is to determine that that person had a responsibility to make sure you would not be injured. That is called the duty of care. But just because the person has the responsibility doesn’t mean you are entitled to compensation for your injury. The next step is to find out if that person did not meet his responsibility, or, in legal terms, there was a breach of duty.
How do you prove there was a breach of duty?
Think of the duty of care as a promise to behave responsibly, and the breach of duty is when someone breaks that promise. A personal injury lawyer needs to look at all the facts and circumstances in your case. In order to find someone guilty of negligence, there must be evidence of specific conduct by the defendant that went beyond what a reasonable person would behave. The defendant could do something that created an unsafe condition, or fail to do something that resulted in a dangerous situation.
Of course, the ideal situation would be that there is direct evidence that you were injured as result of the defendant’s irresponsible actions such as a traffic camera showing the defendant running the red light and slamming into your car. Or three witnesses (a nun, a school teacher, and a 70 year old grandmother) who all saw the defendant run the light. But that is not always the case. Most of the time, the breach of the duty of care is established through circumstantial evidence.
It is up to your attorney to piece together facts that allow a judge or jury to draw an inference that the defendant acted in a reckless manner. For example, the police report may show that there were long skid marks running across the intersection. After the jury sees that evidence, they must now decide if that shows the defendant breached their duty.
It’s not as easy as it seems. For example, if you hired a worker to paint you house and he falls off the roof, are you liable for his injuries? What was the duty of care and was it breached? The painter will claim that you should have provided him with the appropriate safety devices, and that since it was your house, you are at fault. However, you can argue that painting a house is a dangerous job, and the painter has the responsibility to make sure he is secure.
Only after we can prove that there has been a breach in the duty of care can we move on to the next step in finding negligence; was the breach of duty the cause of my injuries?