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Comparing Personal Injury Law in the US and Canada - A General Overview

In both the US and Canada, personal injury law, a subset of the law of Negligence, is based on the English system of Torts. While much of the procedural law governing personal injury litigation, including the types of damages recoverable, is controlled by the laws of individual states and provinces, the two countries share much of the same substantive law.

Notwithstanding there are some cases governed by strict liability (which will be discussed in a future blog), the law of Negligence requires a showing that a defendant owed a DUTY to someone to behave in a particular way, that the defendant BREACHED that duty by failing to act in that particular way, that such breach CAUSED someone to be injured, and that the person thereby incurred DAMAGES, either to his person or to his property. These four elements must be proven in every civil lawsuit involving personal injury, whether the lawsuit proceeds in the US or Canada.

For example, Driver Alan is proceeding down Broadway and crosses Pine Street on a green light. As he drives through the intersection, Driver Barbara, proceeding in the opposite direction down Broadway, suddenly turns left in front of him, causing Alan to smash his vehicle into her, and causing Alan himself to lurch forward, striking his head on the windshield in front of him. Alan suffers a brain injury and is no longer able to work as an accountant.

Whether on Broadway and Pine in Vancouver, BC or the same intersection in Seattle, WA, the elements which Alan must prove are the same-that Barbara owed other drivers a DUTY to heed the rules of the road, including yielding the right of way to a "favored" (US) or "dominant" (CDN) driver; that Barbara BREACHED that duty by turning her vehicle directly into the path of the oncoming driver; that, as a direct and foreseeable consequence of her action, Barbara CAUSED Alan to be injured and his vehicle damaged; and that Alan suffered DAMAGES, in this case including loss of enjoyment of life, lost wages, medical expenses and property damage.

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