Motor vehicle accidents can be extremely traumatic and expensive. Plus, there are many procedures and protocols to follow to ensure that your auto insurance and the insurance companies of any at-fault parties provide you with fair compensation for any claims you may have. One of the most important steps in the claim procedure is determining fault in an accident.
There are several aspects that one needs to take note of when it comes to a fault in a motor vehicle accident. From the process at the scene of the accident and the evidence required to establish fault for the type of compensation claimable, there are many things you need to know to ensure the protection of your legal rights.
Below, we take a look at everything you need to know when it comes to determining fault in an accident in Ontario.
Why Is It Important To Determine Fault When An Accident Occurs?
Determining who is at fault for an automobile accident is important as those who are at fault for the accident will be financially responsible for any personal injuries and resulting damages they caused to others involved in the accident.
In Ontario, when a driver has caused an accident and injured people, both the driver and owner of the vehicle are equally at fault. If the driver or owner is insured, their insurance company will defend them and pay for any personal injury claims made against them from the accident. Usually, the at-fault parties do not have to pay the claim themselves.
However, some claims arising from car accidents can be made without concern for who is at fault. For example, an exception to the above scenario is no-fault car insurance. In Ontario, anyone injured in a car accident can make a claim for statutory accident benefits with their own insurance company, regardless of who is at fault. As well, if an injured person had a disability policy and qualified for the benefits, they would likely receive the benefits even if they were fully at fault for the accident.
If you or a loved one has been injured in a car accident, contact our personal injury lawyers at Fosters Law for a free consultation to help you determine who may be at fault for your accident.
What To Do At The Scene Of An Accident?
When involved in a car accident, it is important always to stay calm and keep a level head. You may miss some important information required to lodge your personal injury claim if you don’t.
Firstly, determine if anyone needs medical attention. If they do, call 911.
Second you shouldn’t sign any forms that state you accept liability or allow anyone (other than the police) to record or take a statement from you. Further, don’t state that you will pay for any of the damages at this point. These are all issues to deal with after a proper investigation of the accident and consultation with a personal injury lawyer.
Instead, focus on exchanging contact and insurance details with the other drivers involved. You should leave the scene with the other driver’s name, contact number, license plate number, and insurance details.
This is also a good time to take pictures of the scene and the damage to the motor vehicles. That way, there is evidence of the cars involved and the damage before the parties have left the scene.
Avoid any confrontation with the other driver. Communication should be civil and controlled. But, if it seems that a criminal act may be involved, you must call the police. For example, if the other driver seems to be under the influence of any substance.
While you should not admit liability for the accident, parties involved in the accident must always complete a police report for the claim and cooperate with the police. If any of the parties have injuries, you must call emergency services immediately.
Once you have obtained all the necessary information at the scene of the accident, you are required to contact your insurance company to report the accident as soon as possible. It’s best to get the claim process started while all the details are still fresh. If you are reluctant to speak to your insurance company, call us at Fosters Law, and we will handle everything with your insurance company if you hire us to be your lawyer.
What Is An At-Fault Accident?
Simply put, an at-fault accident is one where another negligent driver causes you to enter into a car accident. This means the accident occurs either because the other driver did something or failed to do something, thereby causing the accident.
At-fault accidents are not always clear-cut. Sometimes, insurance companies allocate different percentages of fault to drivers involved. For example, the other driver may still be at fault even if you have a 49% allocation and they have a 51% allocation. This percentage relates to the amount of compensation the insurance company is likely to pay. Even at-fault drivers can bring claims, and don’t forget that the insurance company’s assessment of liability may be incorrect.
Who Determines Fault In An Accident?
Ultimately, it is a Judge or a Jury that will be the final decision maker about who is at fault for an automobile accident. However, as most cases do not go to trial, there are other people and companies who may make liability decisions.
Determining fault in car accidents is essential but tricky. While many will have opinions about who is at fault, some opinions are more important than others.
If the police determine you or another driver is at fault for the accident, they may charge you with a driving offence. If you or the other driver plead guilty to the offence or are convicted of the offence this could result in a conviction. This conviction can be used as proof of fault in a personal injury claim.
The insurance company for the at-fault driver or a potentially at-fault person will have an opinion about whether their insured is at fault. Their assessment of fault may affect if they are interested in settlement or not.
Below, we take a look at some of the people and entities that may determine fault.
Other Drivers and Passengers
After a car accident, the drivers and passengers involved will sometimes want to discuss who is at fault between themselves. While listening to what others say is fine, it is a good idea to avoid discussing the accident with anyone other than the police.
However, if you do talk with people at the scene, try to remain level-headed and calm. Try and think clearly about the events that led to the car accident, but keep the details to yourself as it’s best not to discuss the accident’s details with others at the scene.
When the drivers involved become anxious and hyped up, they may make mistakes and admit liability where they shouldn’t. For example, disclosing that you didn’t see the traffic signal change to red.
The Police Report
A police officer will usually arrive on the scene shortly after the incident. When they arrive, their job is primarily to assess the scene to determine if anyone is hurt and who is at fault.
This is often easy to spot based on where the automobiles involved are situated on the road. For example, it may be clear that a vehicle ran through a stop sign if it T-boned another vehicle that had right of way. Or if one vehicle stops at a red light and gets hit from behind. There may also be situations where a car is illegally parked, and the person driving in the same lane was unable to see the car.
These are instances where it is maybe clear and easy for the officer to spot the at-fault driver. The police officer on the scene will then take pictures or draw a simple diagram to note the position of the cars.
Sometimes, fault in a car accident is a result of an underlying criminal act or Highway Traffic Act offence. For example, the at-fault driver may not have adhered to the speed limit. Or, they may have driven under the influence of alcohol or an illegal substance which may have hindered their ability to correctly observe traffic signs and the other cars on the road.
While the police report is a valuable source of information to determine fault for the car accident, the police sometimes get it wrong.
The Insurance Company
Normally, each driver involved in a car accident will report the accident to their insurance provider by uploading pictures and a description of what happened and the damages. Some insurance companies will have an insurance adjuster investigate the accident to determine who might be at fault. Some auto insurers now also use advanced software, algorithms and artificial intelligence to help with determining fault.
Once they collect information about the car accident, the insurance company will then determine which drivers and people involved in the accident they believe are at fault. If you were injured in the accident, the insurance companies involved might seek to reduce your claim by the percentage they believe you are at fault.
What Evidence Is Used To Determine Fault?
There is a wide range of evidence that can be used to determine fault for a car accident.
If able to do so after being involved in an accident, it is a good idea to take pictures of the scene, get contact information for any witnesses and make notes of the traffic and weather conditions as these may be useful when determining fault.
It is also wise to set up a free consultation with a personal injury lawyer. They are in the best position to obtain and advise on all the necessary evidence to help prove who is at fault in your personal injury claim.
Some of the evidence that may be helpful includes:
- the official collision report from the police officer
- statements from eyewitnesses who were on the scene of the accident
- video footage of the accident from surveillance cameras in the area including store security cameras, dashcam footage and traffic camera footage
- black box collision data from the vehicles involved
- the other drivers’ verbal or written statements
- Any expert analysis of the accident
- medical records of those involved in the accident as they often have accident descriptions
Personal injury lawyers are well trained to gather the above evidence to build your case. Each element counts, and it’s important that you obtain the evidence soon after the accident to avoid losing any crucial information relating to the collision. Videos of the accident get overwritten, witnesses may move, and black box data can be deleted as vehicles are driven. Hiring a personal injury lawyer soon after the accident is the best way to ensure that your claim is successful and that you receive appropriate compensation.
Types Of Compensation Available For Accident Victims
If you are in a car accident, the law entitles you to claim several types of compensation.
It is also important to note that should you be at fault to some extent; your claim may be reduced accordingly. Below we discuss the types of compensation you may be eligible to claim.
Statutory Accident Benefits
Everyone involved in a car accident in Ontario is entitled to make a claim for Statutory Accident Benefits. Your own automobile insurance policy pays these benefits, the auto policy of the vehicle you are a passenger in, or by any other vehicle auto insurance coverage on a vehicle involved in the accident. Even a pedestrian hit by a car can make an Accident Benefits Claim either against their own insurance or the vehicle’s insurance.
These benefits are also known as no-fault benefits, as they are payable even if you are at fault for the accident as long as you qualify. These benefits cover medical expenses, rehabilitation expenses, loss of income and some future income loss.
Direct Compensation For Property Damage
This compensation covers the collision damage to your vehicle when you are not at fault for the collision that caused damage to your vehicle. It is called direct compensation because you deal directly with your insurer. Essentially, it means you deal with your insurer for all no-fault collision claims.
Rather than sue the at-fault driver for your collision damage, you make the collision claim to your own insurer.
You can either receive compensation for the repairs or the replacement of the vehicle should it not be possible to effect repairs.
The amount of compensation that you receive will be reduced depending on the percentage of fault you have contributed to the accident. The determination of fault when it relates to a collision damage claim is determined in Ontario by the Fault Determination Rules.
If you disagree with your fault determination, you can seek to challenge it. In Ontario, you may want first to try and negotiate with your insurer and then reach out to the Financial Services Commission of Ontario for some guidance.
Third-Party Liability Coverage
If you are in an accident and considered an at-fault insured driver who caused personal injury to others involved in the accident, your own Automobile insurance will likely provide you with liability coverage for the loss. Your insurer will cover the legal costs to defend the tort claim brought against you on your behalf and, if necessary will pay the injured parties’ damages up to the available liability limits on your policy.
Short-Term Disability and Long Term Disability Insurance
If you are disabled because of a car accident and you have an STD or LTD insurance policy that you purchased or provided through your work, you may qualify for these benefits.
Canada Pension Plan Disability Benefits
If you are seriously injured in a car accident, you may be entitled to claim CPP disability benefits.
If a loved one has been killed in a car accident and had a life insurance policy, you will be able to advance a claim under the policy.
Determining Fault In An Accident can be very complex. If you are in a car accident, remember that just because the police or an insurance company says the accident was your fault, you may still be entitled to compensation. If in doubt, it’s best to consult one of the personal injury lawyers at Fosters Law to help you understand how best to protect your legal rights.
So, to ensure you get the compensation you deserve, please contact us today for a free liability assessment and to let us take care of all your personal injury law needs!