What is Tort Law Part 2: Liability

In our previous blog post on tort law, we discussed the two cornerstones of all tort law: liability and quantum. This blog post aims to provide a specific overview of the concept of liability, particularly in the context of personal injury law.

Note that this overview is very generalized, and does not cover the full range and depth of possible liability issues that might arise on any given file. Liability can be complex and liability issues may have a significant impact on a personal injury file. If you have been involved in a collision or accident, contact a personal injury lawyer to learn more about your legal rights and options.

what is tort law

What is “liability”? And what does it mean to be “liable”?

Liability is a legal concept. Together with quantum, it is one of the central issues in tort law, of which personal injury is a part.

Essentially, liability is a question of whether someone should be held responsible, in law, for an action or inaction which caused injury, loss, or damage. Legal responsibility is a distinct concept and may not always align with one’s sense of moral responsibility or perception of factual responsibility. Liability in tort law is also distinct from findings of guilt or culpability in criminal matters, and the two should not be confused.

Therefore, to be liable in tort law is to be legally responsible for causing damage, injury or loss to another person. Generally speaking, if a court finds that a wrongdoer is liable, the wrongdoer is obliged, at least to some extent, to pay damages to the injured person.

Who determines liability?

Sometimes, the wrongdoer, or their insurance company (see our blog post on subrogation here), will admit that they are liable for the incident that caused the injured person to sustain loss, injury, or damage.  If the wrongdoer accepts responsibility in this way, the main concern usually then becomes quantum.

Sometimes, the wrongdoer may admit to some liability but also argue that the injured person is also liable for their losses or injuries to some extent (such as with contributory negligence), or argue that they are liable only for some of the losses experienced by the injured party (such as if the injured party failed to mitigate their losses).

If the wrongdoer or their insurance company denies liability, and the injured party still wishes to pursue the claim and hold the wrongdoer responsible, then the matter will likely proceed towards a more involved litigation. If the matter proceeds to trial, the court will decide who, if anyone, is responsible, or liable for the damages or injuries caused and losses sustained.

If more than one person is liable, the court will determine the degree to which each party is at fault.

The courts use different legal tests to determine liability in different situations. If the injured person sufficiently proves each element of the requisite test, then the courts will find the wrongdoer liable.

Can a person be liable even if he or she didn’t mean to cause damage, injury or loss?

There are situations where a person can be held liable even if he or she did not intend to cause damage, injury or loss. In many personal injury cases, the wrongdoer does not intend to cause harm to the injured party. However, they may still be found liable for negligence, or admit to liability.

Can more than one person be held liable for causing the same damage, injury or loss?

The Contributory Negligence Act, RSA 2000, c C-27 provides that when two or more persons are liable for causing damage, injury or loss, they will be held liable for the percentage of damage, injury or loss that they are at fault for.  If it is not possible to determine different degrees of fault, then each person will be liable for an equal share of damages.


The information provided on this website does not constitute legal advice and should not be construed as such. Moustarah & Company does not guarantee that this information is accurate or up to date. As a result, should you require legal advice, please contact a lawyer.