It is well known that the burden of proof in civil cases, which include personal injury and medical malpractice cases, is a balance of probabilities. This is usually understood to mean a 51% or greater probability. This can be a difficult burden for injured folks to meet, particularly in medical malpractice.
A great source of unfairness for many years has been the inclination of most defendants and some courts to reduce an injury victim’s damages by a proportionate amount less than 100%, even though the plaintiff has meet the burden of proof of a balance of probabilities, or preponderance of the evidence.
So for example, a court may accept that it was 75% likely that a missed cancer if diagnosed timely, would not have spread to other organs, and award damages to the plaintiff, but then reduce the damages by 25% for the possibility that the cancer would have spread anyway.
The fundamental objection to this is based on unfairness. Civil law treats past causation as a certainty, once the balance of probabilities is achieved. To do otherwise is defence double-dipping, whereby having proven a loss on a balance of probabilities, the plaintiff victim of the negligent injury has the amount of his or her loss reduced by the percentage remainder that is less than 100%. This double-dipping is quite unfair, but in the past has been often done.
Now at last the Ontario Court of Appeal has laid this unfair practice to rest, in a decision in Beldycki Estate v. Jaipargas.
Warning to consumers: Many personal injury lawyers who represent plaintiff injured people are not aware of this issue and will not be aware of the law that says that double-dipping by the defence is unfair. When looking for the injury lawyer who is right for your case, buyer beware!