If you are injured due to another person’s negligence, you might be able to recover money for your losses through a personal injury lawsuit. The purpose of a personal injury lawsuit is to put you back in the position you would have been in had the wrong not occurred.
In Ontario personal injury claims, evidence matters. The strength of your medical records, financial documentation, and witness evidence can significantly impact your ability to recover compensation. Insurance companies and defence lawyers often look for gaps, inconsistencies, or missing records to challenge a claim. Taking the right steps early can help protect your case and provide a clearer picture of how the accident has affected your life. This article will help you understand what you can do to prove your injuries and losses in a lawsuit.
Elements of a personal injury claim
As the plaintiff, or person who starts the lawsuit, it would be your job to prove your case. You need to show three main things:
- The other person was at fault (liability);
- You suffered losses (damages); and
- Your losses were caused by the other person’s fault (causation).
Types of damages
Damages in personal injury cases can be broadly categorized into:
- General damages (non-pecuniary losses like pain and suffering)
- Special damages (pecuniary losses like medical expenses, lost income, and out-of-pocket expenses)
- Future costs (future pecuniary losses like care costs, housekeeping expenses, economic losses, etc.)
Depending on the severity of your injuries, compensation may also account for reduced earning capacity, future rehabilitation needs, ongoing treatment expenses, and changes to your quality of life.
Understanding the burden of proof in civil lawsuits
In Ontario, the burden of proof in a civil case is on the balance of probabilities. This means that it is more likely than not something is true. The Court looks at whether the available evidence supports your version of events. While this standard is lower than the criminal standard of “beyond a reasonable doubt,” it still requires credible, consistent, and detailed evidence.
Why detailed records matter after an accident
After an accident, many people focus understandably on recovery and day-to-day challenges. However, the records created in the weeks and months following an injury often become some of the most important evidence in a lawsuit. Good documentation can help demonstrate:
- the severity of your injuries;
- how long your symptoms lasted;
- the impact on your ability to work or care for yourself;
- changes to your physical, emotional, and social life; and
- the financial costs associated with your recovery.
Tips for collecting strong evidence
Each category of damages requires different types of evidence. Here are some ways to gather evidence:
1. Document your injuries
a. Medical records
Medical documentation is the cornerstone of any personal injury claim.
It is important to seek medical attention immediately after the incident. First and foremost, the physicians need to assess your injuries and treat you to prevent any serious complications. From a legal perspective, the longer you delay seeing a doctor, the harder it will be to prove that the accident you are suing for caused your injuries.
Every time you see medical professionals, they keep clinical notes and records of the encounter. Regular updates to your healthcare team ensure that there is a detailed record of your ongoing injuries and impairments. It is important to keep your doctor up to date on your symptoms so that they can recommend appropriate treatment to help treat your symptoms.
If there are long gaps in treatment or very few medical visits over several years, the defence may argue that your injuries were not serious or were unrelated to the accident. Ongoing medical care and consistent reporting help create a clearer picture of your recovery journey.
Your lawyer will order copies of your medical records, including emergency room reports, diagnostic imaging, specialist consultations, and prescription records.
b. Rehabilitation records
Chances are, you will be seeing your rehabilitation team much more frequently than a physician. Rehabilitation records can help show your level of participation in treatment, your functional limitations, and whether your symptoms improve, worsen, or remain ongoing over time. Your physiotherapist, chiropractor, massage therapist, or whoever else you are seeing will also be keeping clinical notes and records about what you tell them in appointments. If a treatment is helping, or if your symptoms get worse when there is a gap in treatment, it is important to tell your treatment providers this information.
c. Pain journals
If you have the capacity to do so, it may be helpful to keep a pain or symptom journal. You can record the frequency and severity of your symptoms. For example, documenting difficulties with sleep, driving, household chores, childcare responsibilities, exercise, or social activities can provide valuable insight into how the injury affects your daily life.
d. Photographs and visual evidence
Another way to help prove your damages is with photographs. Collecting a few photographs of you doing some of the things you enjoyed most before the accident can be a great way of illustrating your baseline. The closer to the time of the injury the better. Photographs of visible injuries, vehicle damage, assistive devices, home modifications, or recovery milestones may also help support your claim.
2. Use witness testimony
a. Medicolegal assessments
In addition to your treatment team, you will likely need to attend several medicolegal assessments. These are assessments with experts hired by your lawyer, or the other lawyers, to give an opinion to be used at Court. Their reports often play an important role in settlement negotiations and at trial.
Examples of common medicolegal assessments include physiatry assessments, psychology or psychiatry, vocational assessments, future care cost reports, and economic loss reports. It is important to be honest and thorough during these assessments.
b. Collateral witnesses
A collateral witness is usually a friend, family member, or coworker. They are regular people who know you and see how you are impacted day to day. If they knew you before the injury, having them testify can be useful in showing the changes to your life from an outside perspective. Collateral witnesses can help explain changes that may not appear in medical records alone, including mood changes, reduced participation in family activities, increased fatigue, or difficulties maintaining work responsibilities.
3. Keep a record of any financial losses
If you are claiming lost income, you will need to prove how much you would have earned had you not been injured. This is most commonly done with income tax information. Your paystubs or T4s can be helpful as well. If you are self-employed, you may need to gather your business tax information to show what your profits and losses were prior to your injuries. The income can be compared to what you earned after the injuries.
If you have any out-of-pocket expenses, such as mileage, parking fees, the cost of assistive devices or medications, you should keep track of your receipts. You can keep them in a folder and drop them off with your lawyer at regular intervals. You need to prove your losses, so keeping the receipts is key for claiming out-of-pocket expenses.
Additional financial records that may support a claim include disability benefit files, employment records, invoices for housekeeping assistance, transportation expenses, and future treatment recommendations. Organizing these documents early can help streamline the litigation process.
4. Mistakes that can undermine a personal injury claim
There are some common pitfalls to avoid that could lead to undermining your personal injury case. For example:
- Delaying medical treatment – this can undermine proving causation and the severity of your injuries.
- Failing to follow medical advice – non-compliance may suggest the injury isn’t serious, or you may lose out on compensation for failing to mitigate your losses.
- Sharing on social media – photos or comments can be taken out of context and used against you. It’s best to stay offline and ask friends and family not to share pictures of you.
Additional issues that may complicate a claim include missing medical appointments, exaggerating symptoms, failing to disclose prior injuries, or returning to physically demanding activities too soon. Consistency and honesty are critical throughout the legal process.
How Siskinds can help
Proving your case is about what you can show. Keep detailed records, seek medical care promptly, and communicate honestly with your treatment team. These actions strengthen your claim and help your lawyer advocate effectively.
At Siskinds, our personal injury lawyers work with clients across Ontario to help gather, organize, and present the evidence needed to support a strong claim. We understand that navigating medical treatment, insurance issues, financial pressures, and the legal system after an accident can feel overwhelming. If you need guidance, contact a personal injury lawyer who can walk you through the process and fight for the compensation you deserve.