You might only have a vague idea of what personal injury lawyers do for a living. "Go to court," for example, or "fight the insurance companies," might come to mind, and probably some version of, "No fees until you win!" It only matters when you have been in a car accident or suffered other serious injuries because of someone's negligence (like the city, province, or a business or property owner). Then, you need to know which car accident lawyer you should hire, or who is the best personal injury lawyer.
Unfortunately, there is an overwhelming amount of information on the internet and other media, and the aggressive marketing of some law firms simply adds to the confusion. It is hard to get honest, down-to-earth guidance before making this major decision - one that can potentially impact your health and financial security for the rest of your life. We have prepared this brief overview to help you understand the big picture so you and your family can make informed choices when you need a lawyer you trust to protect your best interests, coordinate your no-fault benefits, and get you the compensation you deserve.
INJURY LAW 101
There are two main types of lawsuits - criminal and civil.
A criminal lawsuit tries to determine if someone committed a crime and punishes the criminal when the jury has no reasonable doubt that they are guilty.
A civil lawsuit, on the other hand, tries to prove on a balance of probabilities that an intentional or negligent act or omission (called a Tort) by someone (the defendant) caused injuries and other losses (called damages) to another person (the plaintiff). In a civil lawsuit, the jury (or judge alone sometimes) will assign an approximate value to these damages based on the evidence.
Someone can be tried criminally and civilly for the same act or omission. For example, they can be charged with criminal negligence causing bodily harm, and sued for civil negligence causing pain and suffering, income loss, and other damages. Because the standard of proof is different, the person can be innocent of the crime but still held liable for the damages. No reasonable doubt means that the jury is confident, virtually certain, that the crime was committed. On the balance of probabilities means only that it is more likely than not (i.e. 51% likely) that the negligent act or omission caused the damages.
Civil wrongs are divided into two groups - intentional torts and the tort of negligence. As the name suggests, intentional torts are committed on purpose to harm another person. For example, the battery is the civil equivalent of criminal assault. If a person attacks someone physically, they can be guilty of assault and liable for battery and the losses that result from the attack.
Almost all personal injury lawsuits will allege negligence by the defendant (also called the "tortfeasor") - they did or failed to do something that led to the plaintiff's injuries.
To succeed in a negligence lawsuit, the plaintiff must prove the following:
Duty and Standard of Care - the plaintiff must show that the defendant owed them a legal duty of care, arising from the circumstances. Examples include the duty owed by all drivers to other drivers and pedestrians, but also by a doctor to their patients, or a municipality to residents and visitors. The standard of care owed under this duty is determined by the nature of the relationship. For example, drivers must take reasonable care to ensure the vehicle is fit for use.
Breach - the plaintiff must prove that, more likely than not, the defendant failed to meet the standard of care - for example, the tire treads on the vehicle are worn below the acceptable depth.
Causation - if a breach can be demonstrated, the plaintiff must prove that the breach caused their injuries and resulting damages. Usually, this requires the plaintiff to show that "but for" (which means "without") the defendant's negligence, their injuries and losses would not have happened. Causation is a complex issue and can be shared by multiple parties, including the plaintiff. Contributory negligence will be found when the plaintiff's own actions or omissions are partly to blame for their injuries.
There are two main types of damages: pecuniary and non-pecuniary (also called "general" damages). If causation is established, the plaintiff must present evidence of the actual monetary losses they have suffered and are likely to suffer in the future (pecuniary damages), and of their pain and suffering, loss of amenities, and enjoyment of life (non-pecuniary damages).
Pecuniary - Proving pecuniary damages like past and future income loss and future costs of care usually requires expert reports from accountants, physicians, occupational therapists, and others. The defendant will either deny that the losses even occurred, or will provide its own calculations based on the available evidence. The judge or jury evaluates the evidence and accepts one or the other party's figures or arrives at some other amount. In serious cases involving many years of lost income and ongoing healthcare needs, millions of dollars in pecuniary damages can be awarded.
Non-pecuniary - Non-pecuniary general damages, by definition, do not have a determinate value. They are awarded to compensate the plaintiff for the negative impact their injuries have had on their quality of life. As opposed to the USA, where these damages can be astronomical, our Supreme Court imposed a hard cap on general damages in the late 1970s. Originally, they were limited to $100,000 for the most severe injuries. In response to inflation since that time, the cap is now approximately $418,000.
Damages and Contributory Negligence - If the judge or jury finds that the plaintiff was 20% at fault, for instance, the overall damages awarded will be discounted by the same percentage.
The above is an introduction to the work that personal injury lawyers do, and the way that their expertise can assist accident victims. Please visit our site often for new blog posts in this series, "What is a Personal Injury Lawyer?", and to learn more. In the meantime, please contact us for a free consultation about any questions you have. Campisi - Champions with Heart!
asdf Ontario, Damages and Contributory Negligence – if the judge or jury finds that the plaintiff was 20% at fault, for instance, the overall damages awarded will be discounted by the same percentage.a serious injury because of a car/vehicle accident triggers “no fault” accident benefits (AB), under the Insurance Act’s Statutory Accident Benefits Schedule (SABS). During your recovery, your insurance company is expected to pay for your necessary treatment and other benefits. They will look to settle your claim in order to close their file. Settling and closing your case can have some repercussions; therefore, we suggest you consider the following information before you move forward.
One of the most important factors if you are considering whether to accept a settlement is the potential impact it can have on your ongoing personal injury lawsuit against the at-fault driver. Evaluating this impact will depend on which version of the Insurance Act’s Statutory Accident Benefits Schedule (SABS) applies to your AB claim. Most active AB claims will be governed by Ontario Regulation 34/10, the current version of the SABS. However, under certain circumstances, you might still have the right to access benefits under an older version of the SABS, even if you have been told that your claim is closed. Learn more about "Cold Case" files here.
Once an AB claim is settled, you can seek the remaining compensation as damages for your losses from the defendant in the lawsuit. The concern is that the defendant will argue that the AB settlement was improvident (unreasonably low), and you should not have accepted it. They may claim that you accepted it in bad faith, and they should not be responsible for paying the amounts you should have received from your AB claim.
Before the introduction of “no-fault” benefits under the Ontario Motorist Protection Plan or OMPP, an accident victim generally would not receive any financial relief (income replacement, funds for treatment and care) until their lawsuit settled or went to trial, which could take years. No-fault benefits were intended to provide injury victims with necessary support immediately after the accident. Basically, these exceptions ensure that claimants utilize their available accident benefits in good faith before seeking compensation from the at-fault driver.
During the period covered by the OMPP (June 22, 1990 – December 31, 1993), a defendant was not liable under the Insurance Act for, “all payments that the person has received or that were available for statutory accident benefits and by the present value of any statutory accident benefits to which the person is entitled.” The term “available” was not defined and therefore ambiguous. Since all settlements are a compromise between the expectations of the parties, and the calculation of future losses is basically educated guesswork, how much was “available” could be challenged in almost every case. This ambiguity led to excessive and protracted litigation while holding up reasonable and fair settlement in thousands of lawsuits.
Bill 164 Considerations
Under Bill 164, the second major version of the SABS (January 1, 1994 – October 31, 1996), a defendant is not entitled to deduct any amounts from the damages proven against them on account of accident benefits received by the injury victim. As a result, if your claim falls under the Bill 164 regime, you are not required to consider the impact of a proposed AB settlement on your lawsuit.
Bill 164 also differs from the other versions of the SABS in two potentially significant ways. First, income replacement benefits are indexed to inflation under Bill 164, which needs to be factored into estimating potential settlement value. Second, medical and rehabilitation are not time-limited under Bill 164 and can be claimed indefinitely. Currently, a non-catastrophic claimant can receive med/rehab for a maximum of five years post-accident. The limitation is 10 years for adult claimants under both the OMPP and Bill 59. The duration of med/rehab benefits for children also varies amongst the other versions.
Bill 59 Considerations
Bill 59, the third major version of the SABS (November 1, 1996 – August 31, 2010) reintroduced an OMPP-style interaction between lawsuits and accident benefits settlements, and attempted to resolve the ambiguity (the current SABS is the same). As before, defendants are entitled to deduct for income loss or loss of earning capacity, health care expenses, and other pecuniary losses, “that the plaintiff has received or that were available before the trial of the action.” However, under s. 267.8(21) of the Insurance Act, “a payment shall be deemed not to be available if the plaintiff made an application for payment and the applicant was denied.” There is no obligation on a plaintiff to litigate a denial.
This deeming provision applies unless the court is satisfied that the plaintiff impaired their entitlement to the payment by failing to give any notice required by law (to the AB insurer, for example); failing to make themselves available for any examination that was requested and was required by law; or settling in bad faith. Neither “impair” nor “bad faith” is defined in the statute, again opening the door for disputes despite the greater clarity provided. Generally, however, proof of “bad faith” requires the conscious performance of a wrong or dishonest act motivated by malice or ill will - a high threshold for the defendant to surpass.
Regardless of which version of the SABS applies to your accident, you should discuss the potential impact your AB settlement can have on your lawsuit with an experienced personal injury lawyer. As well, if you have serious ongoing impairments requiring treatment, medication, care and/or assistance, we recommend that you do not settle your AB claim until you have a clear picture of your prognosis and future healthcare needs. For example, a formal Future Cost of Care Report by an Occupational Therapist can provide an assessment and reasonable estimate.
Please do not hesitate to contact us if you have questions relating to your accident benefits claim, settlement or a potential lawsuit. At Campisi LLP, we are pleased to offer a free, no-obligation consultation to explore your options and set your mind at ease.
Campisi LLP – Champions with Heart
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