How do you prove negligence after an injury?

No personal injury claim is normal. A car accident can seem straightforward until you discover anomalies on the road surface or a defective airbag.

Almost every successful personal injury case has one common factor: a determination that another party was negligent. Whether a lawsuit is due to a car accident, medical misconduct, or fall, negligence is the main factor in determining fault and liability.

From a legal point of view, negligence occurs when a person or organization does not adhere to a certain standard of behavior and causes harm to others. The basic negligence test asks, “What would a reasonable and prudent person do in similar circumstances?” For example, the acceptable standard of medical care prior to surgery requires that the surgeon or participating surgical team members wash their hands thoroughly. If a surgeon fails to adhere to this safety protocol, resulting in infection, their conduct could constitute legal negligence.

The four elements required to determine negligence

If an injured person wants financial compensation through a personal injury lawsuit, they must demonstrate four key elements to determine negligence: duty of care, neglect, causation, and compensation.

An element is a required part of a legal claim. Therefore, if a claimant fails to determine any of the four required elements, their claim for damages will be unsuccessful.

Duty of care

The first element required to establish negligence is to determine whether the defendant owed the plaintiff due diligence. A duty of care is legally an obligation to exercise an appropriate level of care to ensure that another party is not harmed. This obligation arises from the relationship between the parties or the circumstances of the breach.

For example, drivers have no personal relationships with all other drivers, passengers, and pedestrians. Nevertheless, everyone who drives a motor vehicle, be it a car, truck or motorcycle, is required to operate it safely. This obligation includes maintaining the vehicle in a safe condition and complying with all applicable traffic laws.

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Entrepreneurs owe the duty of those invited to their property to keep the property free from dangerous and dangerous conditions. In order to fulfill this duty of care, owners should regularly inspect their premises and immediately correct or repair dangerous conditions.

Breach of duty

As soon as the original element has been determined, evidence of negligence must be demonstrated that there has been a breach of the obligation. When a person’s conduct deviates from what a prudent and sensible person would do in similar circumstances, they are violating their statutory duty of care. In a case of negligence, proving a breach is often the most difficult of the four required elements.

To illustrate a breach of duty, imagine a worker informing a shopkeeper that a spill has occurred and an aisle is slippery and unsafe. As mentioned above, it is the owner’s responsibility to keep the property free from known hazardous conditions. If the shopkeeper ignores the information, the decision can be interpreted as a breach of duty. A jury found that a reasonable person, aware of the dangerous situation, had the aisle cleaned to protect everyone in the store.

root cause

The next element required is causality. To prove negligence, an injured plaintiff must prove that the defendant’s breach of duty was the cause of his injury or damage. In many cases this is straightforward. For example, if a plaintiff suffered whiplash in a rear-end collision, the culprit’s failure to stop caused the accident and subsequent injury.

Another consideration that affects determining the cause is predictability of the injury. In the example above, a whiplash injury is a reasonable consequence of failing to stop and leave another vehicle. The violation in this example is the root cause – since the defendant couldn’t stop, the violation occurred.

In order to be held liable, the conduct must also be the legal or immediate cause of the violation. Referring initiators of behaviors that have the foreseeable consequences without any intermediate event or behavior occurring.

In the example above, the rear-end collision is also the immediate cause of the injury. However, imagine that the injured driver needs emergency surgery. During the procedure, a surgeon abandons a sponge or other surgical instrument, leading to infection and adverse medical complications. Under these circumstances, there would be no immediate cause between the first accident and the medical complications.


The last element required to establish negligence is compensation. The main reason a person files a personal injury lawsuit is to seek financial compensation for their injury or loss. Without evidence of actual losses, a plaintiff has no basis for a personal injury claim. For example, a driver can violate his duty of care and cause an accident that does not result in material injury. If someone has a small scratch or bruise, they likely can’t find any damage.

However, if an injury requires medical treatment, surgery, or hospitalization, it is easy for a plaintiff to demonstrate that they actually suffered harm. Additionally, if someone misses days, weeks, or even months of work because of their injury, they are entitled to financial compensation for their lost income. In most cases, these financial costs are evidenced by receipts, bills, statements, or testimonials about future medical treatments or lost wages.

Economic losses are only part of the potential harm an injured plaintiff could receive. While pain and suffering are more difficult to prove, they can be a significant part of a plaintiff’s total compensation in a personal injury proceeding. The non-economic damage includes a wide variety of damage including anxiety, physical pain, emotional distress, loss of consortium, and loss of zest for life.

Establishing negligence is complex and challenging

The four elements required to determine negligence in a personal injury proceeding are seemingly straightforward. Evidence of each element is often challenging, however, and the complexity depends on the circumstances of the individual case. No personal injury claim is normal. A car accident can seem straightforward until you discover anomalies on the road surface or a defective airbag that contributed to the injury. Proving negligence in a medical misconduct litigation presents other hurdles – especially when a positive outcome is never guaranteed, even if no mistakes are made. When someone is injured as a result of someone else’s behavior, they need an experienced lawyer who is familiar with tort law and who will work for fair compensation.

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