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How to prove your personal injury claim.

Most personal injury claims do not make it to trial, but the claim is grounded in the perceived outcome of a trial. If you don’t settle and your case goes to trial, you will be required to prove your claim in court, known as the ‘burden of proof.’

What is the “burden of proof”?

The ‘burden of proof’ is an evidence-related threshold that you must meet before the person who injured you will be found liable.

In a criminal trial, there are serious consequences associated with a guilty verdict, which is why the government has a higher standard of proof. In criminal cases, the government must show that the accused is guilty beyond a reasonable doubt. This standard means that there can be no doubt that the accused is guilty. This is the highest burden that there is in Canadian law.

However, in a personal injury claim, the threshold is much lower. Personal injury claims, such as a car accident or a slip and fall, are resolved in civil trials. During a civil trial, you must prove your case on the ‘balance of probabilities’ standard. This standard means that you must prove that it is more likely than not that your version of events is what happened.

What does the defence do?

Theoretically, the person who injured you can sit back and hope you do not meet the burden of proof, but this isn’t a good strategic move on their part.

The wrongdoer (and their lawyer) will likely produce evidence combating your version of the events to cast doubt. Remember, the court does not need to believe the wrongdoer’s version of events. They simply need to believe that it is more likely than not that your version of events did happen.

Does the defence ever have a burden of proof?

Yes, sometimes the burden may shift to the wrongdoer or the law may impose what’s called a reverse onus on the wrongdoer. This may happen if it helps them reduce their overall liability for the accident. An example would be the seatbelt defence in a motor vehicle accident. Here, a wrongdoer can reduce their overall liability by establishing that you did not have a seatbelt on at the time of the accident, which made your injuries worse.

Still foggy?

Let’s say you were walking at the mall and slipped on a wet spot on the floor, and there was no wet floor sign. After going to the hospital and discovering you broke your arm, you wonder what your legal options are. You call a personal injury lawyer to discuss your options. If you were to pursue legal action, you would have the burden of proof to establish that the mall owner failed to ensure your safety on a balance of probabilities. In personal injury claims, this often requires proving negligence. In this case, negligence would be grounded in your province’s Occupier’s Liability Act. You will have to show that the mall owner had a duty of care, breached this duty, and that your injuries were foreseeable and caused by the mall owner’s failure to place a wet floor sign.

Remember, this is merely a high-level overview of the basic “burden of proof” in a personal injury claim. To fully understand how this burden relates to your claim, it is well worth your while to contact an experienced personal injury lawyer.


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MacGillivray Law is a personal injury law firm with offices in Nova Scotia, New Brunswick, and Newfoundland and Labrador. We serve clients all across Canada.

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