All persons injured in motor vehicle collisions have access to accident benefits, which are available without having to sue anyone. In addition to accident benefits, injured persons may have the right to sue if the injuries resulting from the collision were caused by the negligence of another. If this is the case, it is important to speak to a lawyer at your earliest to determine whether you have a strong claim against the responsible party (commonly referred to as a “tort action”).
When pursuing a tort action against an at-fault party you are essentially claiming that such party owed you a special duty of care, fell below the requisite standard of care, and that you incurred actual losses/damages as a direct result of that party’s conduct (i.e. negligence). If you have a valid claim, your accident lawyer will commence the lawsuit by way of a Statement of Claim. The Statement of Claim will set out the factual groundwork, which demonstrates your entitlement for damages – the amount of money to be paid by the at-fault party to compensate you for your losses. The two primary heads of damages which are most commonly claimed in a lawsuit are (1) pain and suffering and (2) loss of income.
Pain and suffering refers to the injuries, both physical and psychological, sustained as a result of the car accident. The law in Ontario requires a specific threshold to be met in order to obtain damages for pain and suffering – your injuries must result in permanent serious impairment of an important physical, mental or psychological function. The exact interpretation of the threshold definition is constantly evolving as a result of cases coming out of the courts as well as changes to the regulations under the Insurance Act. Accident benefits and benefits from other sources, such as income continuation benefit plans and disability pension benefits will be subtracted from any court awards.
The amount for which you can claim for pain and suffering is also subject to a $30,000.00 deductible. This means that for damages assessed at $50,000.00 the other driver’s insurance company will only be liable to pay $20,000.00. However, the $30,000.00 deductible does not apply to claims where pain and suffering is assessed at $100,000.00 and over. Family members may also sue for any loss of guidance, care and companionship pursuant to the Ontario Family Law Act. A $15,000 deductible applies.
The rules regarding income loss entitle the injured parties to 80% of their net after-tax income loss beginning 7 days after the accident and up to the date of the trial and to 100% of any gross future loss of income and loss of earning capacity following the trial.
Often, because of the requirement that your injury must be a permanent impairment, it may not be known immediately following the motor vehicle accident whether or not your injuries meet the required “threshold”. However, the injured party has two years from the date of the accident to commence a tort action (the “Limitation Period”) by issuing the Statement of Claim. You must also notify the person being sued (the Defendant) within 120 days of the accident that you intend to commence a claim against him or her. During the litigation, the Defendant has the right to information about your insurer, any claims you have made for statutory accident benefits and your medical treatment as a result of the accident. In addition, if a government body or a municipal or provincial road authority is a potential party in an action, there are very short notice requirements that must be complied with. In some cases, you may be required to give notice of a potential claim within 10 days or less following an accident.
The injured party has the burden of proving that the at-fault party negligently caused the accident and that the injuries resulting from the accident are permanent and serious. This requires gathering sufficient evidence to prove the claim. For instance, acquiring this evidence might involve hiring investigators, experts in motor vehicle collision forensics and obtaining specialized reports from health-care professionals. If you are found to be partly responsible for the accident, the portion that is determined to be your fault will be deducted from your claim.
Although most tort actions settle before ever proceeding to a trial, it can be a lengthy and grueling process, sometimes taking years to finalize as a result of documentary and oral discoveries and mediations. If you are injured in a motor vehicle accident you should immediately consult with a tort claims lawyer in order to determine whether you have a strong case in which a claim should be commenced.
For more information, visit our accident lawyer section.
