Personal Injury and the Myth of the Named Defendant

by Kris Bonn

I’ve practiced law now for nearly 17 years. For most of those years I’ve represented injured victims – these are the plaintiffs in legal actions. Over these years I’ve come to realize that there are several myths that pervade our system. One of the most pervasive is the myth of the named defendant.

In most personal injury cases, the named defendant does NOT pay the costs in defending a legal action and does NOT pay any amount of a judgment. For 100% of automobile crash cases, the defendant who caused the crash is not paying a dime for the injury he or she caused. The defendant driver’s insurance company pays to defend the case and will pay any judgment. Even if the driver is not insured, either another insurance company is behind the defence or, in rare cases where there is no available insurance it is a government agency, the Motor Vehicle Accident Claims Fund defends and pays the judgment. For medical malpractice cases, the defendant doctor is represented by the Canadian Medical Protective Association ( a tax payer funded association with the sole mandate of protecting doctors.

Whether an insurance company, the government or an association, the defendant is not the one paying for the injury and harm that she or he caused. Even though this is the case, we can never disclose this to the jury. The myth continues throughout the case and before a jury that the named defendant is actually the one paying for the lawyer and is responsible for paying the judgment.

So, the next time you hear about a personal injury lawsuit where there is a sympathetic defendant, don’t be fooled that the defendant will be paying any money. The real defendant is almost always a large corporate entity.