Understanding the Tort Claim: Liability and Damages
You have been a victim of a motor vehicle accident, and you are wondering whether or not you have a claim against the at-fault party or parties. This claim is known as the tort claim. A tort claim consists of two parts: liability and damages.
The Importance of Establishing Fault or Negligence
In order to be able to pursue a viable tort claim, you must establish some fault or negligence against the other party. Consult with a tort claims lawyer to understand your rights.
Exploring Damages in a Motor Vehicle Accident Claim
This article will focus on the second part of the tort claim, namely damages in the context of a motor vehicle accident claim.
Basically, there are two distinct types of damages in personal injury accidents:
i) General (non-pecuniary) damages – pain and suffering
ii) Special damages
The Threshold for Pain and Suffering Claims
In order recover money for your pain and suffering arising from a motor vehicle accident in Ontario, you must establish that your injuries meet a certain minimum threshold. The threshold is defined in the Insurance Act of Ontario as ‘a permanent and serious impairment of an important bodily function that is physical, mental or psychological in nature.’
Understanding “Serious” and “Permanent” Injuries
“Serious” has been defined as an injury or impairment that substantially interferes with your ability to return to work with modifications or that substantially interferes with your ability to complete your activities of daily living.
“Permanent” implies that the Plaintiff’s injuries are enduring and that over the long-term the Plaintiff is expected to continue to suffer from those injuries.
The Deductible for Pain and Suffering Awards
In Ontario, in addition to the requirement of having to meet the threshold, pain and suffering awards are also subject to a $30,000 deductible. In other words, if your case goes to trial and you are awarded $30,001 for pain and suffering, the net result to you is only $1 once the $30,000 is applied. The $30,000 deductible does not apply to pain and suffering assessments of over $100,000.
Special Damages and Their Exemptions
In Ontario motor vehicle accident tort claims, special damages typically are not subject to the threshold and deductible applicable to pain and suffering assessments. Special damages can include for example lost income or out-of-pocket expenses such as housekeeping or medical expenses incurred as a result of a motor vehicle accident. A plaintiff could recover damages for loss of income and housekeeping expenses in your tort claim even if their pain and suffering does not meet the threshold or exceed the deductible.
Establishing the “Serious” Nature of Injuries
As Plaintiff’s personal injury lawyer, often times the biggest challenge is not so much establishing whether a Plaintiff’s injuries are ”permanent” but in establishing the “serious” nature of a Plaintiff’s injuries. This is especially true where a Plaintiff is forced to return to work sooner than they should (i.e. for financial reasons).
A Plaintiff may have returned to work but continues to experience significant limitations in other aspects of their life. For example, they may not be able to complete housekeeping and home maintenance tasks, may not be able to take care of their children in the same manner as before the accident, participate in recreational or sports activities, or socialize in the manner they were able to before the accident.
The Role of a Plaintiff Personal Injury Lawyer
Part of the job of a Plaintiff personal injury lawyer is being able to assess, evaluate and build up a Plaintiff’s claim in order to ensure you receive as much compensation as you are entitled to. Monetary compensation in the form of a settlement is a poor substitute for your health and your pre-accident life but it can go a long way towards regaining your independence.
An experienced personal injury lawyer also knows what to look for and how to establish a clear and compelling case in order to ensure that you are properly compensated. You may have a viable tort claim arising from your motor vehicle accident and not even realize it. You should consult with an experienced personal injury lawyer who can review your case and advise whether or not you have a winning case.
Content Updated: Originally published July 30, 2014
