Personal Injury

The question as to whether you ‘have a case’ involves consideration of several factors. In some instances the short answer may be “no”. In other instances you may have a case but the risk involved and the potential recovery may be such that it is not advisable to proceed. For those cases where the answer is “yes”, relevant considerations may be the length of time it will take, the risk that will be involved, the amount that will be paid for legal fees, and perhaps most importantly, how likely is it that an amount awarded by judgment can be collected from the proposed defendant.

It is rare that the value of a case is determinable at the very outset of a matter. Cases evolve as evidence is acquired and legal considerations become more focused. Experienced lawyers may be able to provide some general idea of the value of a case early on but this will be subject to change as the case progresses.

The length of time you may have to begin a personal injury case depends on the circumstances of the event causing injury. In some instances, written notice of the circumstances of the injury and a stated intention to make a claim must be given in writing to the proposed defendant within a VERY short time of the happening of the event. Lawyers working in the personal injury field will be familiar with the requirements and for this reason you are encouraged to contact a lawyer immediately should you sustain an injury by reason of some other party’s negligence.

In any personal injury matter the objective will be to recover the maximum that the law provides for. To achieve this objective a thorough understanding of applicable laws is required. While proceeding without the advice of a lawyer is possible, rarely will an unrepresented litigant recognize a recovery fully consistent with a maximized recovery.

In most instances, personal injury matters resolve without the need for a trial. The objective from the outset of a personal injury matter is to acquire and then present the facts in the most effective means possible to assist the defence in better understanding the risks to the defendant if a trial were to occur. This promotes settlement. In rare cases there may simply be too many points of contention or differences too great to resolve by compromise and a trial becomes necessary. In these instances thorough preparation is key. Good counsel will anticipate what will be required in advance of trial and prepare for it. Nothing at trial should come as a surprise.

Most cases resolve without the need for a trial. If it appears a trial will be required it is incumbent on your lawyer to prepare you fully. It is also appropriate that your lawyer canvass your willingness to proceed through a trial. Occasionally individuals will find the prospects of appearing at trial to be too daunting (again in that small percentage of cases that cannot settle before a trial is necessary). You as the client have a say in what happens. You can choose not to go through a trial; understanding of course that your case will have to settle for perhaps a greatly reduced amount or nothing if you are not prepared to proceed with a trial.

The length of time resolution of your case will take is dependent on a large number of factors including: the nature of the incident that caused injury, the severity of injury, the number of issues in dispute, your age at the time of injury (resolution of cases involving children oftentimes is delayed until they reach age of majority), future considerations arising from the injury such as future medical needs, future income loss and future care requirements. Generally speaking, cases will take from 2-5 years to resolve but again, circumstances may dictate a shorter or longer timeframe.

If you are partially at fault, you may still have a case. Generally speaking, your case will be reduced by the percentage to which you are found to be at fault. This is known as ‘contributory negligence’. A common example is failure to wear your seatbelt. Often times you will be found to be contributorily negligent if you are hurt in a car accident and you were found to not be wearing your seatbelt.

If you are involved in a motor vehicle accident and have access to an Ontario motor vehicle policy, through the no-fault system, the auto insurer will pay for medical treatment deemed reasonable and necessary as it becomes necessary up to policy limits. If your injury arises from causes other than a motor vehicle accident, a request for advanced payment for medical expenses can be made but it is discretionary on the part of the defendant should they choose to pay. If you have other benefit plans such as a health benefit policy, they may be accessed for payment. Some medical treatment may be funded through OHIP.

Pre-existing conditions may affect recovery. A great deal will depend upon the extent to which the injuries you have sustained over lap with a pre-existing condition.