Many find themselves in the unfortunate position of suffering injury as a result of someone else’s negligence. Assuming liability and causation can be proven, the major question becomes how to value the losses suffered.
The value of a personal injury claim is certainly fact specific. However, lawyers, judges and juries can look to previous cases for guidance when assigning a value to a particular case. Compensation can be awarded for many different types of losses that an injured person suffers.
If you are injured in a motor vehicle accident, your claim is subject to some special rules that can significantly impact the compensation you receive.
The basic auto policy is mandated by the Ontario Government and has components that allow for both at-fault and no-fault claims. Therefore, should you have the unfortunate experience of suffering injuries as a result of a motor vehicle accident, you generally have access to a mixed system of rights and benefits. The “no-fault” component allows a claim for various accident benefits (generally pursued against your own auto insurer). The “at-fault” component allows you to sue another party if that party caused, or contributed to the cause, of the accident.
The damages awarded and/or paid by an at-fault party can include (but are not limited to) compensation for:
1. Proven out of pocket expenses
It is best to keep receipts to document expenses incurred as a result of your injuries. For example, you may hire a housekeeper to assist with the tasks you are no longer able to do.
2. Medical Expenses
An award or payment for medical expenses can only be made if the injured person passes a threshold test (set out below). Ontario’s mixed auto insurance system is designed with the intention that most reasonable and necessary medical expenses be paid by your own insurer through the accident benefit no-fault claim. However, with recent cutbacks to this system, this is not always the case.
3. Cost of Attendant Care
Some people may require the assistance of a personal support worker to assist with tasks such as bathing, dressing and feeding. These costs can be very expensive.
4. Loss of income (past and future)
A claim for past loss of income can be made up to the date of a settlement or trial at 70% of gross income, less any amounts available from other sources. Therefore, in general, past income loss is not compensated at 100% of what is lost. In addition, nothing is payable for the first seven days. Future income loss is calculated at 100% and can also be claimed.
5. Loss of competitive advantage
If your position in the marketplace has been compromised and you are less competitive in your field than your peers, you may be compensated for a loss of competitive advantage.
6. Pain and suffering
In an effort to stabilize awards for pain and suffering, in the 1970s the Supreme Court of Canada set an upper limit for these damages in the amount of $100,000. This amount is increased each year for inflation. As of 2016, the maximum award for pain and suffering permitted in Canada was just over $365,000.
In order to receive an award of general damages for pain and suffering, it must be shown that as a result of the use or operation of an automobile, someone has died or suffered injuries that result in a:
(a) Permanent serious disfigurement or
(b) Permanent serious impairment of important physical, mental or psychological function.
The government has provided a lengthy definition with regard to this threshold test. Disfigurement is generally scarring of some nature (for example, from a surgical laceration required as a result of your injuries). With regard to a functional impairment, it is necessary to compare pre- and post-accident functioning to determine whether a permanent and serious impairment of an important bodily function exists.
The claim for pain and suffering may also be subject to a deductible of at least $30,000 depending on its value. Last year, the government instituted some changes to the deductible system. The deductible will now increase each year for inflation. Currently in 2017, this deductible is $37,385.17. The deductible will apply if your general damages are valued at less than $124,616.21.
7. Family Law Act Claim
Claims are available for some family members of the injured person if they suffer a loss of care, guidance or companionship as a result of their relative’s injuries. Different deductibles may apply. Family members may also be compensated for financial losses.
The areas for compensation above are potentially reduced by private benefits and/or the benefits available through the no-fault system. Various time limitations apply to personal injury claims and it is therefore important to seek the assistance of a lawyer who specializes in this area of practice as soon as possible.
Blog post written by Lucianna Saplywy, a partner at Daniel & Partners LLP, practicing exclusively in personal injury.
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This article was featured in HWS Magazine.