An old legal saying goes:
If you have the facts on your side, pound the facts.
If you have the law on your side, pound the law.
If you have neither the facts nor the law on your side, pound the table.
Whether you’ve been injured in a car accident, a fall, or in any incident caused by someone else’s negligence, the burden is on you, as the injured person, to prove your claim. Providing this proof hinges on what you can show, not “pounding the table”.
Your evidence is what breathes life into your claim. Strong and well-organized evidence, supported by consistent testimony and credible experts, can make the difference between a fair settlement and settling for pennies on the dollar.
In this blog, we’ll break down the types of evidence that matter most in Ontario personal injury claims.
- Expert Evidence
In many personal injury claims, especially those involving permanent and serious injuries, expert reports are crucial. Judges and juries rely on experts to break down complex issues that are outside the experience or knowledge of ordinary people.
Examples of common types of experts are as follows:
- Physiatrists, neurologists, and orthopaedic surgeons may discuss the diagnosis and prognosis of physical injuries.
- Psychologists or psychiatrists deal with psychological injuries including depression, anxiety, or PTSD, and can speak to degrees of cognitive impairment.
- Occupational therapists and life care planners can make recommendations as to your future care needs and costs.
- Forensic accountants and vocational experts will help quantify your loss of income or earning capacity.
- Engineers and accident reconstruction experts will typically comment on how and why an accident occurred, and who is at fault.
- Medical and Treatment Records
Your medical records are one of the most important types of evidence in a personal injury claim. These records document the timing and severity of your injuries, the treatment you’ve received, and the recommendations made by your healthcare providers.
Insurers and defence lawyers will scan these records closely for any pre-existing conditions, gaps in treatment, or inconsistent symptom reporting.
- Discovery Evidence (Telling Your Story)
Examinations for discovery (commonly called “depositions” outside of Canada) are where both parties answer questions under oath. Discoveries are usually the first chance to test the other side’s version of events, and to assess credibility.
Discovery transcripts can become a key part of the evidentiary record and can be used at trial to impeach a witness’ credibility or to highlight inconsistencies in their testimony.
Judges and juries pay close attention to whether a witness is consistent, reliable, and forthcoming. A clear, honest, and consistent discovery helps lay a strong foundation for your case and can influence whether it ultimately settles.
- Collateral Witnesses
Witnesses who can speak about your life before and after your injury, such as family members, friends, and coworkers, can help paint a clearer picture of the damages you’ve suffered. These witnesses can corroborate changes in your personality, ability to work, level of independence, or participation in activities. Their personal knowledge of your daily life contributes to credibility and helps illustrate the real-life impact of your injuries in a way that complements the medical and expert evidence.
- Photographs/Video, Surveillance, Social Media
It’s undeniable that visual evidence is persuasive. Photos or videos of your injuries, damage to vehicles, the collision scene, or of the collision itself, are all contemporaneous pieces of evidence that help bring your story to life.
In some cases, defendants will hire private investigators to conduct surveillance. They may record video or take photos of the plaintiff over several days, hoping to find them engaging in activities that go against what they reported in discoveries or to their doctors or treatment providers.
Finally, in today’s connected world, social media can be a major source of evidence. Courts in Ontario have accepted posts, photos, videos, and even comments from platforms like Facebook, Instagram, TikTok, and Twitter as evidence, and have ordered that the contents of these accounts be produced. It’s generally safe to assume that anything you post online after an accident could end up before a judge or jury.
Conclusion
Building a strong personal injury case in Ontario is about more than just telling your story and “pounding the table”. You have the burden of proof, which can only be met by substantiating your claim with credible and reliable evidence.
At Oatley Vigmond, we work closely with our clients to identify, preserve, and present the best evidence to support their claim. If you’ve been injured and unsure what steps to take next, contact us for a free consultation.
