What is a Tort Claim?

A tort claim is a claim for damages by the victim of a wrongful act which resulted in physical, emotional, psychological or financial injury, against another person who can be held legally responsible. To put it simply, a tort claim is a case filed against a person who accidentally injures another, whereby the latter seeks compensation for the injury.

The wrongful act or omission which caused the injury is legally referred to as a “tort”. This term comes from the Latin word “tortum,” which literally means “wrong or injustice”.  It is the legal wrong which causes harm to the victim and makes the offender civilly liable for the injury caused.

A tort can be committed almost anywhere at any time. This is exactly why tort law is a very important part of Canada’s legal system. It has far-reaching effects for every person, regardless of age, gender, profession or social status. Whether you are an employer, manufacturer, driver, bartender, doctor, lawyer, pet owner or homeowner, everyone can be held to a duty of care under Canadian tort law.

In recent years, Canadian tort law has been forced to advance and keep up with the times, particularly pertaining to social issues and modern technology.  Tort law is commonly invoked to protect victims and help them achieve justice against their offenders, such as a property owner who failed to fix an unsafe railing that resulted in injury, or an impaired driver who caused injury to their passenger.  Canadian tort law has also played a crucial role in recent noteworthy cases, including product liability and medical malpractice cases, such as those involving breast implants and birth control pills.

Like most countries that observe the principles of common law, Canadian tort law is mainly based on jurisprudence or court decisions. Many of these decisions were originally taken from English tort law, but were supplemented by local regulatory laws, such as the laws under the Ontario Highway Traffic Act regulating road safety.  But for the most part, Canadian tort law has stayed true to its English origins.

Making a tort claim

The essence of a tort is the offender’s potential for civil liability. In this sense, the true purpose of the law is to compensate victims for their loss, not to punish the offender. So, if you get injured in a car accident, the main objective of the tort claim is to compensate you for the physical and psychological injuries you’ve suffered, not to punish the driver at fault.  Rather, the onus is on Canada’s criminal law system to punish offenders or law breakers.

The victim in a tort claim is called the plaintiff, while the offender or wrongdoer (also known as the tortfeasor) is called the defendant. To recover damages for a tort, the plaintiff must prove that the defendant is at fault or is negligent. In this sense, all tort claims are the same. (However, in some tort claims, the defendant acknowledges their liability in causing the accident, which removes the onus of proving negligence).  Also, there are varying degrees of fault for different kinds of tort.

There are two main kinds of tort: intentional torts and unintentional torts.

There is said to be an intentional tort when the tortfeasor intends to cause a particular outcome by performing an act that results in physical injury. On the other hand, a tort is considered unintentional when the wrongdoer is negligent or fails to observe the duty of care required by the surrounding circumstances, and this failure or negligence ultimately results in physical injury. Therefore, the main difference between the two is the presence of intent.

Intentional torts are generally considered more serious than unintentional ones. Because of this, the penalty for committing this kind of tort is usually higher. Hence, the plaintiff, if successful, will likely receive more compensation or damages. Intentional torts that result in physical injury include assault, battery, and sexual harassment.

To better illustrate the principles of intentional tort, let’s discuss a fairly common one: battery. This tort is said to occur when the tortfeasor intentionally has unwanted physical contact with the plaintiff, which ultimately harms the plaintiff.  Battery is said to be an intentional tort, because the wrongful act was done intentionally. It does not matter if the harm which resulted was not intended. As such, battery can easily include acts of violence committed by the tortfeasor which were calculated to harm the plaintiff, as well as well-meaning gestures which inadvertently interfere with the plaintiff’s dignity and security. For example, every form of medical treatment, regardless of the intentions of the doctor performing such treatment, will be considered battery if it is performed without the consent of the plaintiff. Why? Because the law gives the plaintiff the right to decide which medical treatments they want performed on their body.

On the other hand, unintentional torts arise out of carelessness or negligence rather than deliberate acts.  Unintentional torts are the most common source of personal injury claims in Ontario. A good example of an unintentional tort is one arising from a car accident. Whether one or both vehicles were not observing the duty of care required under the circumstances, the mere fact that the accident resulted in physical injuries will always make the negligent driver liable for an unintentional tort.

Settling a tort claim

Before an accident victim can settle a tort claim, they first need to understand the full extent of their damage or injuries. For example, in a car accident which results in physical injuries, you should obtain professional medical advice on the full extent of your injuries, the types and costs of treatment, and how the physical injuries you suffered will affect your future. It’s only when you understand the full extent of the damage that you’ll be able to get a realistic determination of an appropriate settlement amount. 

Accident victims have two years from the date they fully realized their injuries, in which to file a claim, which is in most cases two years from the date of their accident.  It’s important not to rush into settling a claim until you have sufficient time to achieve a comprehensive medical assessment and experience treatments and an attempt at recovery.  Every person recovers differently and some injuries do not heal as quickly or fully as expected.  For this reason, a personal injury lawyer will generally advise allowing yourself time, within the two year limitation period, to fully understand how much the injury will affect your life.

Call the Injury Lawyers of Ontario (ILO) law office in your community to talk with one of our experienced attorneys and find out more about your legal right to compensation.