The Most Common Defences Used in Calgary Personal Injury Lawsuits

If you file a lawsuit for a serious personal injury, one of the first arguments from the defendant’s side is that you were partially or entirely at fault for the injury or the accident. That’s why you need a skilled injury lawyer Calgary to counter the defence strategies raised by the opposing side. 

These defences can significantly affect the value of a claim or even determine if compensation is awarded at all. Understanding how these arguments work is fundamental in preparing a strong case. From disputing the cause of injuries to questioning the timeline of legal action, each defence has the potential to shift the outcome. 

Today, we’ll share the most common defences used in Calgary personal injury lawsuits.

Key Takeaways 

• Defences in Calgary personal injury cases can significantly reduce or prevent compensation.
• Skilled lawyers counter these defences through evidence, expert testimony, and legal strategy.
• Acting promptly and preserving evidence is imperative to protect your claim.

1. Comparative Fault

Comparative fault allows the defendant to argue that the plaintiff shares some responsibility for the accident. In Alberta, the comparative negligence system applies, meaning damages are reduced based on the plaintiff’s percentage of fault. This can significantly lower the final compensation amount.

If you are found partly at fault, your award is reduced by that percentage. For example:

• A car accident leaves you with $20,000 in proven damages.
• You are found 25% at fault for speeding.
• Your recovery drops to $15,000.

Alberta uses a modified comparative negligence approach. This means if you are 51% or more at fault, you cannot recover damages at all. That’s why at-fault parties try to use this defence to reduce or escape liability.

2. Pre-Existing Condition

This defence is often raised in personal injury cases where the defendant argues that the claimant’s injuries existed before the incident. The objective is to limit or eliminate liability by asserting that the harm was not caused by the defendant’s actions. This approach is frequently used by every insurance company seeking to reduce settlement amounts.

Essential aspects of this defence include:

• Medical History Review: Defendants request and analyze the plaintiff’s detailed health records to identify past injuries or conditions matching current complaints.
• Expert Testimony: Medical experts link the present symptoms to prior ailments rather than the alleged accident.
• Causation Argument: The defence claims the damages are unrelated to the incident, which frames them as a continuation of an existing problem.

While a pre-existing condition can complicate a claim, it does not remove the possibility of compensation. If negligence aggravated the prior condition, damages may still be awarded for the worsening of that injury. 

In the 1996 Athey v. Leonati case, the main issue was whether the disc injury was caused by the accidents or pre-existing conditions. But liability was admitted, and no contributory negligence was claimed. The court found the accidents contributed partially and awarded the appellant 25% of the total damages.

Assumption of Risk

This means that when a plaintiff is shown to have voluntarily accepted a known danger, it effectively relieves the defendant of a duty of care for those risks. It is most frequently seen in cases involving sports, recreational activities, or other situations where hazards are well known and inherent to participation.

The defendant’s legal team must prove:

• The plaintiff had actual knowledge of the specific risk.
• The plaintiff fully appreciated the nature of that risk.
• The plaintiff voluntarily chose to proceed despite the danger.

Examples include:

• Signing a waiver before joining a gym (acknowledging possible injuries).
• Playing contact sports like football, where certain injuries are foreseeable.
• Entering a clearly marked hazardous area.

This defence does not apply if the defendant’s conduct increased the inherent risks, such as failing to maintain equipment safely or acting with reckless disregard.

4. Failure to Mitigate Damages

This argument asserts that the claimant did not take reasonable steps to reduce harm or limit expenses, which can directly affect the compensation awarded. Motor vehicle accident victims, for example, are expected to act reasonably to prevent additional damages. If a court finds that injuries or losses could have been minimized, the plaintiff may be denied a portion of the claim. 

Important aspects include:

• The plaintiff had the opportunity and ability to take steps to lessen the impact of their injuries.
• They failed to take these steps, worsening their condition or incurring extra costs.
• Evidence shows that the additional harm resulted from inaction or imprudent decisions.

The defence does not eliminate liability for the initial injury but can reduce the amount of compensation awarded based on avoidable damages. In the case of Janiak v. Ippolito, the respondent was injured in a traffic accident and could not return to work. 

Surgery was recommended with a 70% chance of success, which could fully restore the respondent and allow a return to work. The respondent, fearing surgery and seeking a 100% guarantee, refused the operation and remained disabled. 

Since liability was admitted, the case focused on damages. The trial judge ruled the respondent was not entitled to compensation for pain, suffering, or lost earnings caused by refusing reasonable medical treatment. The Court of Appeal agreed but slightly adjusted the loss-of-income award, acknowledging recovery was not guaranteed.

5. The Limitations Act 

In Alberta, the Limitations Act sets strict deadlines for filing personal injury lawsuits. Missing these deadlines can prevent claimants from pursuing fair and just compensation, which makes it a critical defence used by defendants.

Personal injury claims must generally be filed within two years from the date the injury was discovered or ought to have been discovered. If a lawsuit is filed after this two-year window, the defendant can request the court to dismiss the claim outright.

However, certain circumstances may extend this period, such as when the injury was not immediately discoverable or when the claimant is a minor or legally incapacitated. Claims against government entities usually require an early notice of claim, separate from the standard timeline.

Because the Limitations Act can end a personal injury case before it begins, it’s wise to consult an experienced Calgary personal injury lawyer from Sidhu Personal Injury Lawyers to protect your rights and ensure deadlines are met.

6. Failure to State a Claim

A common procedural defence in personal injury cases is the claim that the plaintiff’s complaint fails to state a legally sufficient claim. This defence allows the court to dismiss the lawsuit early, without examining the evidence or facts, if the plaintiff has not included the necessary elements to support their case.

If you’re a claimant in Calgary, you need to know these important factors: 

• Your complaint must establish all required elements, such as duty, breach, causation, and damages in negligence cases.
• If causation is unclear or the complaint points to another cause, the court may find the defendant is not liable.
• Early dismissal under this defence prevents unnecessary litigation costs and avoids trials on insufficient claims.

By identifying missing elements, the defendant can limit exposure before the case advances. 

7. The “Trivial Defect” Rule

In premises liability cases in Calgary, defendants sometimes argue that the hazard causing an injury was too minor to be legally actionable. This argument, known as the Trivial Defect Doctrine, protects Calgary property owners from liability for insignificant defects that do not pose a substantial risk. 

Courts recognize that it is unreasonable to expect owners to maintain perfect conditions at all times. However, there are major factors courts consider, including:

• Size and depth of the defect
• Location and foot traffic in the area
• Lighting and visibility conditions
• History of prior accidents or complaints
• Whether reasonable maintenance would have detected and corrected it

If a defect is classified as trivial, the injured party’s claim may fail, as minor imperfections are not legally actionable. This doctrine is commonly raised in cases involving small cracks, slightly raised tiles, or minor irregularities on Calgary walkways.

How Skilled Injury Lawyers Calgary Counter These Defences

Skilled injury lawyers from a reputable personal injury law firm address defence strategies by carefully analyzing the facts, gathering evidence, and applying relevant legislation and case law. Each defence requires a different approach. Lawyers also challenge procedural and technical arguments, such as limitations periods or waivers, to protect the claimant’s rights.

Defence	Counter Strategies
Comparative Fault	Present evidence proving the plaintiff exercised reasonable care; challenge exaggerations of the plaintiff’s responsibility.
Pre-Existing Condition	Show the accident aggravated the condition; separate prior issues from new injuries.
Assumption of Risk	Demonstrate that the risk was not obvious or voluntarily accepted. Present witness statements or surveillance, and expert testimony.
Failure to Mitigate	Provide medical records and actions proving timely treatment and recovery efforts.
Limitations Act	Verify filing dates and argue for exceptions if delays are justified.
Failed to State a Claim	Amend pleadings or clarify legal grounds for the injury claim. Adding more detailed descriptions of how the injury occurred, specifying the laws or regulations that were violated.
Trivial Defect Rule	Provide evidence such as medical reports, repair invoices, or expert testimony showing the defect directly caused measurable injury, financial loss, or long-term impact

Let an Injury Lawyer Calgary Navigate Your Claim for a Successful Outcome  

Calgary personal injury claims face common defences, which can reduce or block compensation if not properly addressed. Claimants should preserve all evidence, seek an experienced personal injury lawyer promptly, and act quickly to avoid missed deadlines under the Limitations Act. 

Skilled Calgary personal injury lawyers from Sidhu Lawyers analyze each defence, gather supporting evidence, and ensure claims are presented clearly to maximize recovery and protect your rights. Contact Sidhu Personal Injury Lawyers Calgary today to know the best legal recourse for your case. 

Frequently Asked Questions 

What are the three defences to negligence?

The three main defences to negligence are contributory negligence, where the plaintiff’s own actions partly caused the injury; comparative negligence, which reduces compensation based on the plaintiff’s share of fault; and assumption of risk, where the plaintiff knowingly accepted a known danger, limiting the defendant’s liability.

How to defend a personal injury claim?

Start by collecting all relevant evidence. This includes video footage of the accident, witness statements, and reports from police or emergency services. These documents can help prove you were not at fault and support your claim, which makes it harder for the at-fault party to escape liability.

What is the hardest injury to prove?

In personal injury law, the hardest injuries to prove are chronic pain, soft tissue damage, and psychological trauma. These conditions may not appear on standard medical tests, which makes documentation and expert testimony essential. Injury lawyers Calgary rely on detailed medical records, specialist reports, and consistent symptom evidence to support these claims.