Can you sue someone for causing you to catch a cold? 4 basic elements of small claims litigation illustrated.

Anyone can sue anyone for anything anytime. However, not every case will stick. The assessment of every small claim depends on the circumstances, of course, but there are always several central elements that must be established for a small claim to be successful. We always look to these elements when people come to me looking to sue someone. So, without further ado. In any small claim, to be successful, the plaintiff must firmly establish:

  • Wrongdoing
  • Damages, and, in some cases,
  • Causation,
  • Mitigation of damages.
  • Let’s illustrate with a situation where a woman went for a swim in her condominium’s pool and, the next day, caught a cold. She believes that this is because the water in the pool was too cold, and wants to sue the condominium. Now, let’s see how the above elements apply to her situation.


    First, and perhaps predictably, the defendant must have done something wrong. Normally, the defendant must have caused a breach of a contract or committed a tort. Torts encompass a wide variety of types of wrongdoing, and include things like negligence, as well as intentional wrongdoings, like defamation or “trespass to chattel” (interference with someone else’s lawful possession of property).


    To establish causation, the plaintiff must show that his or her troubles or damages were, indeed, the direct fault of the person being sued (the defendant). If causation can’t be clearly established, the plaintiff, really, has no claim. Sometimes, causation is clear – for example, the defendant borrowed money from the plaintiff and never gave it back. Other times, however, causation is not so obvious. In the event with the pool, causation is rather difficult to establish. There’s no sure way to tell that the cold was the result of the pool – it could be caused by any number of things. Causation could, perhaps, be established by a doctor’s report, but such a report is sure to be challenged by the defendant.

    Given the need to establish causation, then, the woman’s claim is unlikely to be successful.

    Damages and their Valuation

    If causation is established, there is still the matter of establishing damages and their amount. That is, even if the defendant did some wrong to you, you must still show that this wrong resulted in some objective monetary loss or suffering.

    There are all kinds of damages that the plaintiff can claim based on contract law, tort law and more. In all cases, it must be shown that damages did occur, they must be valued reasonably, and their amount must be supported. For example, if a contractor did faulty work in your home that must be repaired, you can, of course, sue him for the amount of the repair. However, you must prove that the work was, indeed, faulty, and provide evidence of the cost of repair. In practice, this means providing, for example, photos and/or an inspection report that shows deficiencies of the work, as well as a quote for repair from another contractor to as a means to evaluate the damages.

    In the case of the unfortunate lady with a cold, it’s difficult to show what damages she suffered because of her cold and how much they are valued at. It’s difficult to estimate the physical suffering associated with a cold objectively, and any estimates that could be made are likely to be very small, since a cold is a common and relatively mild ailment. Perhaps the lady missed two days of work, but in order to claim compensation for lost wages, we would need to consider the third element.

    Mitigation of Damages

     This notion prescribes that the plaintiff must do everything possible to reduce his or her damages and not escalate them needlessly. Consider a situation where a commercial tenant (a business) spontaneously moved out of an office, breaking a contract with the landlord, and the landlord, therefore, lost rent money during the time when the property was untenanted. In this event, the tenant is liable to the landlord for any rent money that the landlord can’t collect between the time that the original tenant moved out and a new one moved in. However, the landlord also has an obligation, one to mitigate damages. This means that the landlord can’t sit there, with no tenant, and expect the tenant who moved out to compensate rent until the term of the lease expires. The landlord must actively seek another tenant, to make sure that another business moves in as soon as possible, and the landlord loses as little money as possible. If the tenant can show that the landlord made no effort to seek another tenant, the landlord’s claim is very likely to be significantly reduced.

     If we accept that the lady with the cold got the cold because of the pool, and did miss three days of work as a result of her cold, and is asking the condo to compensate her wages, there is still the question of mitigation. Did she really need to miss three days of work? Maybe she only had to miss one, or two, or none at all. If the judge isn’t satisfied that she absolutely needed to miss three days of work as a result of her cold, her claim will be partially or entirely unsuccessful.

    Sylvie, Toronto

    I really appreciated your attention to details, your level of preparation which was impressive, and enthusiasm. I am really happy we have Spectrum Paralegal in our corner. Thank you for being the champion of our small claims court!