Bildfell Law

Understanding Personal Injury Cases and How Damages are Assessed

The aftermath of a personal injury accident can be overwhelming. You will want to sue the individual who harmed you if the accident was serious or the effects are long lasting. You have the right to sue for compensation for your injuries resulting from someone else’s negligence even if you were partly at fault for the accident.

The Purpose of a Personal Injury Claim
A personal injury claim is meant to be “compensatory;” it is intended to compensate the injured plaintiff for what was lost due to the accident or injury. A financial settlement or award is meant to make you, as the plaintiff, “whole” again, at least from a monetary perspective.

Who Pays the Claim?
If you are successful in your personal injury claim, the monetary damages are payable by the insurer who represents the at-fault party; the insurer becomes legally responsible for the accident by accepting responsibility or if the matter decided that way in court. The insurer is the automobile insurer in the case of an automobile accident and usually a business or home insurer in the event of a slip and fall accident, or even a federal or Ontario worker’s compensation program in the case of a workplace accident insured by such.

If the at fault party has little or no insurance, then your ability to collect compensation for your damages will depend on the type of accident involved. As an Ontario motorist, you will have some insurance protection on your own automobile insurance policy for an accident with an underinsured or uninsured motorist, which is unrelated to a tort claim. For slip and fall accidents, if the at-fault party has no insurance coverage, then the at-fault party is personally financially responsible.

How Personal Injury Claims Work
If you are injured in a motor vehicle accident, you can pursue an accident benefits claim from your insurer and, if the other party was at least partly at fault, then you can pursue a tort claim as well. For an automobile accident tort claim in Ontario, you will need to meet the “threshold” to collect damages for your injuries and, to collect compensation, your claim will need to surpass the current deductible amount of $36,540.

The threshold requires that you experience either: death, permanent and serious disfigurement or permanent and serious impairment of an important physical, mental or psychological function. The principles of “meeting the threshold” do not apply to your claim for medical costs or loss of income, however.

If you are injured in a slip and fall case, there are no statutory accident benefits, such as coverage for medical and rehabilitation expenses, income loss, housekeeping and home maintenance, and property loss. However, you can recoup uncovered amounts your as part of the tort claim you can pursue. If you have coverage through other insurance (e.g., employee health benefits or a private health insurance plan), you will need to submit your claims there first and will be eligible for tort compensation on the difference. There is no threshold to meet to obtain damages in a slip and fall personal injury accident.

Factors in Assessing a Personal Injury Claim
There are many factors to consider when assessing the value of a claim. Fault is a significant factor as is the nature and severity of the injury, and the impact the injury has on your ability to work and carry out daily living activities. Your ability to conduct your own personal care, household chores and recreational activities you conducted in the past, and your ability to care for your family are considered when assessing damages for the impact of the accident on you.

Often, the true cost of an injury cannot be determined until you have healed, or you have healed as much as possible, which can take years. The fact that a personal injury case is not settled quickly actually works in your favour as it ensures that the damages can be assessed more accurately. Even then, some damages are more difficult to assess than others, such as the monetary value of pain and suffering or the inability to enjoy hobbies because of physical limitations caused by accident-related injuries.

When your lawyer prepares to reach a settlement, he or she will examine decisions about similar cases from the courts and keep in mind the past cases he or she worked on personally. Fortunately, nearly all cases settle prior to going to trial, which is a significant cost savings for both sides in the personal injury (tort) claim.

How Does Fault Affect Your Claim?
While fault of the other party is clear in many cases, in some situations, fault is uncertain or you may be considered partly liable for your accident injuries. Often 50% fault is attributed to each party where fault is not otherwise discernable. If there is some fault on your part, your ability to pursue a tort claim for your injuries is not thwarted, but any finding of “contributory negligence” can reduce the total amount of damages available to you. If you also caused the accident or failed to take reasonable care for your own safety and your own negligence contributed to that loss, your right to fully recover for that injury or loss may be correspondingly affected.

Some examples of where reductions have been imposed by courts in motor vehicle accidents due to contributory negligence are failing to wear a seat (15-25%) if the defendant can prove that proper use of a seatbelt would have prevented or reduced the injury, failing to wear a motorcycle or bicycle helmet (10-15%) if the defendant can prove that the use of a helmet would have reduced or prevented the injury; and being a willing passenger in a vehicle where the driver was impaired by alcohol or drugs (25-45%).

To help avoid a potential claim against you for contributory negligence for your ongoing accident injuries, you must fulfill your positive obligation to minimize or mitigate the financial impact of the harm caused by the accident. For example, if you do not seek medical treatment, you do not follow the physician’s recommendations, or you abandon the physician’s recommendations on your own, your award for damages could be reduced.

Contact Bildfell Law for a Personal Injury Lawyer in Sarnia or Petrolia
If you or a loved one has been injured in a personal injury accident, consider speaking with a personal injury lawyer in Sarnia or Petrolia as soon as possible. At Bildfell Law, we provide a free initial consultation. Our lawyers in Sarnia or Petrolia can answer your questions and inform you about which laws apply to your specific situation. Contact us at 519-339-0440.