CASE EVALUATION
Case Evaluation
If you’ve been injured in an accident or through the negligence of another, you may be wondering if you’re entitled to compensation. If your injuries are serious, you’re probably wondering what happens now, what are my options and “how much is my personal injury claim worth?”
The answer to how much your personal injury claim could be worth will depend upon a number of factors, some of which I will touch upon briefly below.
Initially, was someone else (even partially) at fault for causing your injuries?
To be entitled to damages for an injury (excluding no-fault benefits in auto cases, or Workers’ Compensation for workplace injuries), someone else must be wholly or partly at fault for your injury. So, if you were injured in a car accident, you may be entitled to personal injury compensation if someone else caused or contributed to your car accident. You may also be entitled to damages if the car accident or collision was caused by a design or manufacturing defect or even a defect in the design or maintenance of the roadway. Additionally, you may be entitled to certain no-fault benefits.
Likewise, if you were injured in a slip and fall, you may be entitled to compensation if the condition of the property where you fell contributed to your fall, i.e. if you fell because of a pot hole, a raised sidewalk slab, a bunched up entry rug, water on the floor or the accumulation of snow and ice.
The fundamental question is: Did someone or something else contribute to or cause your injury?
Can I still recover damages if I was at fault for an accident?
If you’ve been injured in an accident, you should speak to a personal injury lawyer, even if you think you’re at fault. In many cases, fault is a legal question, and can only properly be answered by a lawyer experienced in personal injury law. Even if one lawyer has told you that you have no case, you should still get a second opinion. For instance, if you fell in an icy parking lot, while wearing flip flops, it is likely a Court would find you partly responsible. However, depending upon the severity of your injuries and resulting losses, you could still be entitled to many thousands of dollars in damages, even though your total recovery has been reduced by your percentage of fault. At law, this concept is known as ‘Contributory Negligence’.
What types of personal injury damages can I recover?
Broadly speaking, you may be entitled to recover two distinct types of damages in personal injury claims, sometimes termed general and special damages:
General damages are also known as non-pecuniary or non-economic damages and/or damages for pain and suffering, and provide compensation for intangible losses.
Special damages (also known as pecuniary or economic damages) provide compensation for out of pocket costs incurred, or that will be incurred in the future.
What is the maximum amount of general damages I can recover for pain and suffering in Ontario, and is there a cap?
In 1978, the Supreme Court of Canada, in Andrews v. Grand & Toy Alberta Ltd., 1978 2 S.C.R. 229 at 261, 265, arbitrarily established a cap on non-pecuniary damages in cases where negligence causes catastrophic personal injuries, limiting such recoveries to $100,000.00 in 1978 dollars.[1]Adjusted for inflation, the cap on damages for pain and suffering is slightly in excess of $366,000.00 today.[2] Damages at or near the cap are awarded in cases involving brain injuries and/or quadriplegia. The Andrews cap does not apply to non-pecuniary damages that do not stem from bodily injury, such as defamation or psychological injury.[3]
How can I determine how much my Ontario Personal Injury Claim is worth?
In determining how much your personal injury claim is worth, lawyers often turn to both their personal experience, and conduct searches using their (expensive) online subscription research services (i.e. Westlaw and Quicklaw). However, in the majority of cases, this question cannot be answered for months (or even years) after the injury has occurred, as the full scope of injuries are often not readily apparent (i.e. claims are worth less when someone makes a full recovery, more when they don’t and will require future care or will lose income in the future). If you would like to get a rough idea of how much personal injury damages can vary across cases, you can search the Compendium of Damages Awarded in Personal Injury Actions Across Ontario, Hon. Chadwick, J. Remember, if you have questions about your personal injury claim, I am here to assist, and there are no up front fees.
Are general (pain and suffering) damages subject to additional limits in auto claims?
General damages of less than $121,799.00 (for accidents occurring after August 1, 2015, and subject to increase after December 31, 2015) are subject to a deductible of $36,540.00, pursuant to Ontario Regulation 461/96, Bill 198 and amendments to the Insurance Act in 1996 and regulations thereunder.[4] Accordingly, someone whose general damages are assessed at $100,000.00 would only recover $63,460.00 after the deductible is subtracted. Those whose general damages are less than the deductible ($36,540.00) are not entitled to recover general damages. In addition, to recover for injuries, you must be able to show that you have satisfied the following requirements, commonly referred to as the Verbal Threshold:
- You have sustained permanent impairment of a physical, mental or psychological function, and
- The function which is permanently impaired is an important one; and
- The impairment of the important function is serious.
What Other Types of Damages (Special Damages) are Recoverable in Personal Injury Actions?
Other losses commonly incurred in Ontario personal injury lawsuit cases include:
- Lost Income, including past lost wages, loss of future earnings and/or loss of competitive advantage;
- Medical costs incurred (or to be incurred) for things like prescription medications, physiotherapy, care provided by OHIP,[5] medical equipment, nursing care, etc.;
- Additional household expenses incurred (or to be incurred), such as added costs for gardening, house cleaning or child care/care giving;
- Interest;
- Family Law Act Damages;
In addition, legal fees and costs, and HST on same are recoverable.
A. How is Lost Income Calculated for Personal Injury Cases?
The amount of an income loss claim depends upon a number of factors, including the number of weeks (or years) of income loss, whether taxes had been paid in the past, and how stable (or volatile) the injured persons earnings had been, as well as whether the income loss was caused by an automobile collision, where recoverable income losses are reduced, as set forth below.
Generally speaking, lawyers acting for injured parties will seek to determine the amount of wages lost over the first several years, then extrapolate that across the rest of an injured party’s expected career. For larger cases, and most cases heading to trial, lawyers will retain economic loss experts, such as accountants, actuaries or economists, who will analyze the injured party’s work and earnings history, employment trends and statistics, and prepare a report, setting forth expected economic losses. These individuals are known as ‘expert witnesses.’
i. Special Rules in Auto Cases:
Where income loss results from an automobile accident, the following special rules apply:
1) No damages are payable for income loss sustained in the seven days after the accident;
2) Thereafter, 70% of lost gross income is recoverable until the date of trial (provided the accident occurred on or after September 1, 2010);[6]
3) After trial, 100% of future gross lost income is recoverable, reduced to present value.
B. How are Personal Injury Medical Costs Calculated?
Generally, past medical costs are calculated simply by adding up expenses incurred, for things like prescription medications, medical equipment, physiotherapy, chiropractic care, massage therapy and care paid for by OHIP. Depending upon severity, the calculation of future care costs may require input from OHIP, along with expert reports called ‘Life Care Plans’, along with input from the retained medical and economic loss experts to determine the present value of anticipated future care costs. Note that OHIP is entitled to repayment for expenses paid as a result of the injury, where such expense is later recovered.[7]
i. Special Rules in Auto Cases:
Under Sections 30(4) and 30(5) of the Health Insurance Act, R.S.O. 1990, c. H.6, OHIP does not have the right to recover for future costs of care arising out of auto insurance cases.
C. How are Additional Household Expenses Calculated?
After a serious accident, an injured person may not be able to perform yard work, gardening, shovel the driveway, paint, clean their house and perform housework, cook, or provide the necessary case for their young children. To cope, they may receive help from a family member, friend, or even hire someone to assist. In any event, by determining the amount of help needed on a weekly basis, and working with your health care providers to determine the length of time that help is likely to be required, then multiplying by a nominal hourly rate (but not necessarily as low as minimum wage), an economic value for those losses can be obtained for presentation to the insurance company and/or the Court.
D. Interest
An injured party is entitled to prejudgment interest on their losses, under a hodgepodge of regulations, at a hodgepodge of rates. For instance, the following interest rates apply:
1) General Damages (pain and suffering) @ 5%
a/k/a non-pecuniary damages
(Non-auto cases)
R.R.O. 1990, Reg. 194, r. 53.10
2) Pecuniary Damages – Currently @ 1%
for Claims arising in Q2 2015
(all other damages)
A floating rate depending on the date the claim arose,
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 127, Courts of Justice Act, Postjudment and Prejudgment Interest Rates
i. Special Rules in Auto Cases:
a. Recent amendments to the Insurance Act, R.S.O. 1990, c I.8 s. 258.3(8.1) have limited recovery of prejudgment interest on general damages (pain and suffering) arising from auto accidents, reducing same to a floating rate, depending upon when the accident occurred. This change may apply retroactively, though the matter is currently subject to conflicting decisions.[8]
E. Who May Bring a Family Law Act Claim?
The spouse, children, grandchildren, parents, grandparents and siblings are entitled to make a claim (in the main action), under the Family Law Act, R.S.O. 1990, c F.3(61).1 for both general (non-pecuniary, pain and suffering) and pecuniary (out of pocket or economic) damages. In such cases, general damages have been effectively limited to a maximum of $100,000.00 per claimant, in 2001 dollars.[9]
i. Special Rules in Auto Cases:
Where a Family Law Act claim arises as a result of a car accident, such claim is likewise subject to a deductible of $18,270.00, pursuant to Ontario Regulation 461/96(5.1)(2), though said deductible vanishes for claims greater than $60,899.00 (where the claim arose between August 1, 2015 and before December 31, 2015, at which time it will again increase).[10]
What Other Factors Affect the Value of a Personal Injury Claim?
In addition to the above, a number of other factors can impact the value of a personal injury claim. Some, such as the insurance company you are dealing with, or the particular adjuster assigned, are out of your control, as is generally the case regarding contributory negligence (reducing the amount of your recovery by the percentage you are deemed to be at fault). However, there are a number of factors that impact the value of your claim that you can control, such as how likable you come across as, whether you follow the advice of your treating physicians and obtain the care you need along with your credibility. Also, claims tend to settle for higher amounts if you hire a lawyer or law firm known for going to trial.
The above is simply an overview of Personal Injury Claims and Compensation, and is not intended as legal advice.
If you have been injured, call our GTA and Hamilton Personal Injury Lawyers at 647-495-8995 for a consultation of what the compensation for your personal injury could be.
Michael’s Law Firm has offices in both Hamilton and Toronto and can even come to you if necessary.
[5]Costs incurred or to be incurred by OHIP are not taxable in auto cases, but are otherwise taxable. See note 6 below.
