While pain and suffering compensation is a legal right for Ontario drivers, it can sometimes be complicated to negotiate. If you’ve been in an accident, you are entitled to sue the driver who caused the accident for pain and suffering damages, but it’s important to fully understand how this type of lawsuit works.
Pain and suffering compensation is considered “general” or “non-pecuniary.” This means that it is impossible to assess the monetary value of the injured party’s pain or suffering. Because of this, each pain and suffering claim is carefully investigated and also subject to limitations. In order to be compensated for such damages, your lawsuit must meet several conditions.
Condition #1: Statutory Deductible
One of the most important things to know about a pain and suffering award is that unless your claim is worth more than $36,000, you will not receive any compensation. This is because there is a $36,000 statutory deductible for all pain and suffering claims.
On the upside, if your general damages exceed $121,000, the deductible is waived. Make sure to speak with an experienced personal injury lawyer before filing this type of claim to make sure that it will be worth your time and money.
Condition #2: Threshold Injury
An even more important consideration in regard to pain and suffering awards is that, due to Ontario legislation, damages for pain and suffering will only be paid in cases of motor vehicle negligence if the victim of the accident has died, been permanently and seriously disfigured, or is permanently and seriously physically, mentally, or psychologically impaired. A victim’s injuries must pass this “threshold” in order to receive any compensation for pain and suffering.
One serious consequence of filing this type of claim is that as the plaintiff, you may be forced to pay all or part of the defendant’s legal fees if the lawsuit is not successful. That said, it is important that you be confident in your ability to prove that you have been permanently impaired due to your injuries. You should also keep in mind that some pain and suffering trials don’t take place until up to 7 years after an accident, so at this point you’ll need to prove that your injury is still affecting you and will go on affecting you in the future.
Does Your Injury Meet the Legal Threshold?
There are several ways courts decide whether a victim’s injuries pass the threshold. First, they consider whether the injuries have caused permanent physical, mental, or psychological impairment. If the court determines that they have, they will next consider whether the function the victim has lost is important and serious. Finally, the court will consider the impact of this impairment on the individual’s life.
Depending on their lifestyle or job, an impairment may be more serious for one individual than another. If, for example, injuries prevent an individual from doing the job they did prior to their accident, it is likely that their injuries have passed the threshold. Even an injury that prevents daily household duties or social activities can be considered serious.
One complication in these types of cases is that a judge may overrule the jury’s decision about whether the injured party has passed the threshold. Courts are usually fair and generous when determining whether a plaintiff passes the threshold, but it’s still important to speak with a lawyer if you are deciding whether to start a pain and suffering case.
If you want to know more about how to proceed with a pain and suffering case, call 1-855-446-7765 to speak to a personal injury lawyer today.
