What You Should Know About the Tort Claim ProcessJune 02, 2016
While many forms of compensation after an accident are straightforward, the tort claim process can be confusing. Tort claims are often complicated because they provide compensation for some expenses that can be difficult to assign monetary value to.
While loss of wages and injury treatment expenses can be easily calculated, other forms of compensation like loss of earning opportunity and pain and suffering are more difficult to determine. Below, you’ll find out more about how tort claims are settled.
Who Can File a Tort Claim?
Anyone who sustains an injury due to someone else’s negligence can file a tort claim. For example, if you were in a motor vehicle accident or hurt yourself at work through no fault of your own, you could begin the tort claim process. It’s important to remember that if you were in any way responsible for your injury, the percentage you were responsible will be subtracted from your claim.
In addition, your injury must be quite serious to receive pain and suffering compensation. A serious injury is one that prevents you from working, acting as a caregiver, or living your life as you normally would. Your injury must also be permanent, meaning that it will likely affect you for the rest of your life. Your personal injury lawyer can clarify whether your injuries qualify.
It is important to remember that the limit for pain and suffering compensation is $360,000 in Canada.
Tort Lawsuit Process
It is difficult to estimate how long a tort claim takes to settle, but every tort claim process will involve the following steps.
1. Gathering Evidence
In order to support your case, you must have evidence, including any witness or police reports. Your lawyer will also gather witness statements and conduct interviews to make sure you have as much evidence as possible. The evidence-gathering process is ongoing, and you and your lawyer will work together to make sure you have all the documentation you need to support your claim.
2. Beginning Your Case and Gathering Documentation
Your case will not officially begin until your lawyer has filed a Statement of Claim, sent it to the defendant, and received a Statement of Defense. After these documents are filed, lawyers on both sides discuss how the case will proceed, such as requesting documentation and evidence from the opposing side. This helps your lawyer learn as much as possible about your case. Undertakings will also occur, where lawyers promise to provide one another with information that is needed for their case. This may include medical, financial or other information.
As the case moves forward, your lawyer will review the applicable law and try to give you insight into how long the case will go on, the expected amount of your settlement, and the likely outcome of the case.
After evidence has been gathered, the next step in the tort claim process is to have lawyers on both sides question the plaintiff and the defendant about the documents and evidence they have presented to support their respective cases. You will be asked to take an oath prior to questioning. Your lawyer will ensure that the other lawyer’s questions are fair and allowable.
4. Medical Exams
Both sides may request that you undergo a medical exam by a physician of their choice. You may be asked to participate in more than one exam. The physician’s input will be incorporated into the evidence and your lawyer will use it to support your case.
5. The Settlement Process
At any point in the case before the judge makes a final ruling, a lawyer from either side may suggest a settlement to avoid proceeding to trial. If you have been in a motor vehicle accident, it is likely that your case will be settled out of court. It’s hard to say how long a tort claim will take to settle. The settlement process can be long, sometimes taking several years. Your lawyer will always be available to advise you on whether you should settle or continue to negotiate. If your case does go to trial, the judgment will usually be delivered within several weeks. Once your claim has been settled, your lawyer will deduct any expenses and legal fees and provide you with your compensation. If you are unhappy with a judgment provided by the court, your lawyer may appeal it.
With this overview of the tort claim process, you should have the information you need to proceed with getting legal assistance. If someone else’s negligence resulted in your injury, speak to a tort claims lawyer to understand your rights.
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