Personal Injury Law Articles

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By Toronto Personal Injury Lawyers

Accident victims in Ontario have a right to sue at-fault drivers and seek compensation for pain-and-suffering. In such a lawsuit, this compensation is referred to as general or non-pecuniary damages, because there is no way to put a specific price on an individual’s pain or suffering. This was made clear by the Supreme Court of Canada in the case of Andrews v. Grand & Toy  in 1978:

There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution.

Common Law Limits to General Damages

civil-litigationIn Andrews, the accident victim, J.A. Andrews, was a young man rendered a quadriplegic by a negligent driver in a car accident. The Court observed that it was difficult to conceive of a person his age losing more than Andrews had lost. In determining how much money the young man should be awarded for his pain and suffering, the Supreme Court looked south of the border and noted that awards for pain and suffering “have soared to dramatically high levels in recent years”. The Court determined that the time had come to stabilize awards for pain and suffering. Since that time, the most a person can recover for pain and suffering is $100,000.00, which has since increased to around $350,000.00 due to inflation.

Insofar as Andrews provides a yard-stick for general damages, accident victims should temper expectations when suing for pain and suffering since no accident victim will ever receive a million dollars, let alone millions of dollars, for pain and suffering alone; unless an accident victim is, heaven forbid, rendered quadriplegic or something similarly tragic, it is hard to imagine a court awarding upwards of $350,000.00 for pain and suffering. Million dollar awards are still possible, of course, because there are other heads of damages including loss of past and future income and the cost of medical care. These heads of damages may raise the global value of claims well into the millions. However, we are focusing for the moment only on general damages, and, in particular, general damages for victims of car accidents in Ontario.

Insurance Act Limits to General Damages

In enacting particular provisions of the Insurance Act, the provincial legislature signaled a policy decision to discourage claims for general damages arising from car accidents where the victims have suffered only minor injuries.  Accident victims in Ontario will not receive any money for pain and suffering unless two conditions are met.

Statutory Deductible

First, a $30,000.00 statutory deductible for pain and suffering awards means that claimants will receive no money for general damages unless their claim is worth more than $30,000.00 from the outset. In other words, if a court award $30,0001.00 in general damages, the plaintiff will receive only $1.00. The deductible does not apply to general damages awards in excess of $100,000.00.

Threshold Injury

injured-thumbSecond, and more importantly, the Ontario legislature has declared that no damages for pain and suffering are payable in motor vehicle negligence claims unless the accident victim has has died; has sustained a permanent serious disfigurement; or has sustained a “permanent serious impairment of an important physical, mental or psychological function”. This latter prerequisite to awards for pain and suffering is referred to by personal injury lawyers as the “verbal threshold”, or simply the “threshold”..

To put it simply, if an accident victim’s claim does not “pass the threshold”, they (usually) will not receive any award for pain and suffering and, in some cases, may be ordered to pay the defendant’s legal fees for starting an unsuccessful lawsuit. More often than not the Court is not asked to make a determination with respect to the threshold until after a trial, and after tens of thousands of dollars of legal fees and expenses are incurred by both sides. If the Court finds that plaintiff’s injuries do not pass the threshold, they may order the Plaintiff to pay a significant chunk of the defendant’s legal fees. Not only do plaintiffs lose the case, they lose a significant amount of money in the process. Therefore, claimants must be confident in their ability to prove that they suffer a permanent and serious impairment at the date of trial, which is often 3-7 years after the accident.

How to Determine if an Injury Meets the Legal Threshold?

How do Court’s determine whether an accident victim passes the threshold? Generally, Courts ask the following three questions:

  1. Has the injured person sustained a permanent impairment of a physical, mental or psychological function?
  2. If yes, is the function which is permanently impaired an important one?
  3. If yes, is the impairment of the important function serious?

In answering these questions, the Court must consider the effect of the accident on the individual plaintiff, not an average person. This means that even if a particular person’s response to their injuries seems disproportionate as compared to what would be expected of your average Joe or Jane, the Court must look at how the injuries and impairments have impacted the life of the individual plaintiff.

An inability to return to one’s pre-accident employment will, usually, be a clear indication that a plaintiff has passed the threshold. However, even where an accident victim was not employed at the time of the accident or their work has not been affected by their impairments, courts have still found that a restriction in usual activities of daily living such as household, recreational and social activities are sufficient to be classified as a serious injury.

Conclusion

The decision as to whether a plaintiff “passes threshold” rests entirely with a judge; even if the jury awards general damages in excess of $30,000.00, a judge may still determine that the plaintiff has not passed the threshold, thereby overruling, as it were, the jury’s decision.

Courts are generally fair, reasonable and liberal when considering whether a plaintiff passes the threshold. With the right set of evidence and, most importantly, a credible plaintiff, plaintiffs are generally able to pass the threshold. Above all, credibility is key, as judges are asked to consider how an accident has affected the individual victim.


Ask a Car Accident Lawyer in Ontario

Toronto LawyersHave you or a loved one been injured in a car accident because of someone else’s fault?  If so, do you know your legal rights?   If you would like free legal advice about your car accident and injuries, then feel free to fill out the form. A qualified Ontario car accident lawyer who practices personal injury law will contact you to discuss your rights as soon as possible.

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by Toronto Personal Injury Lawyer

employment[2]Lucy worked at a desk job 44 hours a week earning $18.00 an hour. She also earns about $300.00 a week playing saxaphone at bars on evenings and weekends.  She’s paid in cash for most of her gigs and doesn’t declare this income to CCRA. While driving to one of her gigs, Lucy had the misfortune of being in a car accident; a car accident where she suffered a mild brain injury, broken clavicle, and multiple fractures to her fingers. Doctor’s have advised her that she can’t return to work for some time, and that it’s very unlikely that she’ll ever be able to play the saxaphone again. She does not have disability insurance and has maxed out vacation time available to her. This article will discuss where Lucy can look to obtain compensation for her income loss.

Income Replacement Benefits

Let’s assume that Lucy has suffered injuries that keep her from returning to work. If she had health and disability benefits through her day job, she would first look to the short/long term disability insurer who would provide her with some degree of income replacement. Since she doesn’t, she will look to her own auto insurer for income replacement benefits. (It’s worth noting that if she did have disability insurance,  Lucy’s auto insurer would receive a credit for any money she was paid under the disability policy).

Like all car insurance policies, Lucy’s policy provides for income replacement benefits or “IRB”s for short.  Section 5 of the Statutory Accident Benefits Schedule (“SABS”) states that an insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person was employed at the time of the accident and can no longer perform the essential tasks of their employment; or the person was not employed at the time of the accident but was employed for at least half a year prior to the accident (and that person can’t perform their essential tasks of their employment).  This benefit is available to both employees and self-employed individuals (who would be wise to retain an accountant to assess how much they are entitled to by way of IRBs). Luckily for Lucy, she was employed by a company and the application process is relatively straightforward. Assuming her car insurance company believes she is unable to work, she’ll receive bi-weekly cheques in the mail, however, the cheques won’t be for as much money as she was making before the accident.

Lucy’s employer must submit an OCF 2 to her insurance company, who will then calculate how much money they’ll pay her, which is really all Lucy needs to know. Lucy will not be paid for the first week she’s off work.

The basic amount of IRBs payable on a weekly basis is 70% of gross employment income loss. Since she earned $792.00 per week before the accident, this means the insurance company will pay her $544.00, right? Wrong. Standard auto insurance policies cap a claimants IRBs at $400.00, though there is an option to purchase enhanced benefits. Lucy didn’t purchase enhanced benefits, so now she’s left trying to recover the rest of the money she’s losing from the person who caused the accident, or more particularly, the at-fault party’s insurance company. While IRBs are paid weekly or bi-weekly, damages for income loss in lawsuits are only paid at trial or, as is more often the case, when the parties agree to a settlement. It will will probably be at least a year, if not two, or three, or more, before Lucy sees a penny from the negligent driver’s insurance company.

Loss of Income, Earning Potential and Competitive Advantage

Lucy was lucky enough to retain a good personal injury lawyer who initiated a lawsuit against the at-fault party soon after her accident. As part of her claim for damages, Lucy’s lawyer is asking for income lost up to the time of the trial, as well as future income loss, loss of earning capacity, and loss of competitive advantage, which we’ll discuss presently.

Past Loss of Income

Lucy’s claim for past loss of income encompasses all of the money she lost prior to the trial date. The personal injury lawyer’s first job it to prove the income loss. With respect to Lucy’s day job, this is simple as the personal injury lawyer will produce her pay stubs. It will not prove so simple to prove how much money Lucy made, and therefore can be said to have lost, with respect to her playing in a band. This is one of the risks people take when they work for cash and don’t declare income to CCRA. Lucy’s personal injury lawyer will try to wrangle up any receipts or other evidence of Lucy’s income as a sax player, but it’s very likely that the defendant won’t give this evidence too much credence. In the grand scheme, it is unlikely that  Lucy will be able to collect 100 cents on the dollar for the money she claims to be losing as a result of not being able to play the sax.

So, what is Lucy’s claim worth? First, the Insurance Act limits a plaintiff’s recovery to 80% of their net income loss. Second, defendants are entitled to a credit for whatever IRBs a person receives. Assuming she is still receiving IRBs at the time of trial,  Lucy can therefore only claim approximately $233.60 per week in income loss ($792 gross income x 80% less $400/week in IRBs). This is in addition to any income loss suffered with respect to playing the sax, which, as before, will be difficult to prove.

Mitigation of Income Loss

If Lucy is able to mitigate her loss – a topic for discussion in its own right – and she returns to work, her income loss claim would have to be adjusted. If she goes back to her old job(s), her income loss claim crystallizes on the day she does. If she takes a job that makes less money than before, her income loss claim is reduced by the income she’s earned.

Future Income Loss

An accident victim is entitled to 100% of their future income loss, from which amount the defendant is entitled to deduct any payments from other sources, such as IRBs, disability benefits, or income from lower paying jobs a plaintiff has at the time of trial. However, not being able to see into the future, it is often difficult to accurately project a person’s claim for future loss of income. Often, personal injury lawyers will retain accounting and medical experts to set out a number of predictions and will then argue with insurance defence lawyers about which is the most reasonable.

Loss of Earning Capacity and Loss of Competitive Advantage

Let’s imagine that Lucy is lucky enough to be able to return to her pre-accident employment, but that the injuries she sustained threaten to diminish her future job prospects, the likelihood that she’ll be promoted, or, the difficulty she might face finding a new job (or a new band), should she be dismissed from her previous position.

In this case, her personal injury lawyer will advance a claim for loss of earning potential or loss of competitive advantage. These types of claims are rife with uncertainty and unpredictability and Courts have used various methods to calculate how much a person’s loss of earning capacity is worth; sometimes expert reports will assist courts as they employ complex formulas using weighted averages and probabilities, while other times, they’ll simply look at all the facts and assess what’s fair.

Conclusion

Don’t worry too much about Lucy. She had the best doctors, the support of her family and friends, and a great personal injury lawyer who negotiated fair settlements for both her accident benefit and tort claims. For our part, we’ve learned that folk unable to return to work after a car accident may be entitled to $400.00 in IRBs paid weekly or bi-weekly, but will have to wait some time to recover any other income loss. If you earn upwards of $600.00/week, you may want to look into enhancing your auto insurance policy and raising the bar higher than $400.00 in IRBs.

We have also learned that working for cash poses particular problems for plaintiffs who want to make a claim for a loss of (unreported) income. Finally, we have learned that even if these folk return to work, they still may have a claim for compensation based on the fact that they may not be able to secure promotions, pursue alternate employment opportunities, or simply work as efficiently as they did before the accident.

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Our Toronto Personal Injury Lawyers give free consultations to anyone in Ontario.  Simply Ask your question by completing the form  and an experienced Toronto personal injury lawyer will call you to answer your question.

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by our Toronto Personal Injury Lawyer

All drivers in Ontario must be insured and all insurance policies provide for Accident Benefits, which are meant to provide car accident victims with quick access to certain necessities, such as medical treatment and income replacement for unlucky individuals who cannot return to work following a car accident.  These benefits are generally available to all car accident victims, regardless of who caused the car accident, hence the term “no fault”; it does not matter whose fault it is, nearly all car accident victims can make a claim for these benefits.

In a perfect world, the Accident Benefits claim system was meant to be user friendly, and accessible to the public without the need for legal representatives to serve as go-betweens for victims and insurance companies. However, if you take a look at the Statutory Accident Benefits Schedule, you’ll see a big gap between the vision and the reality; the claims system can be complicated and a qualified legal professional – a lawyer or paralegal – can serve as a trusted guide to guide you through the claims process.

This article will set out the various types of benefits included in a Standard Automobile Insurance policy, as well as the policy limits – how much money is available – under each heading. You should know that auto insurance policy holders can change their policies by making it easier to access certain benefits or increasing the amount of benefits.  They may elect to pay a higher monthly premium to bump-up the policy limits or amount of weekly benefits payable.  If a heading has a asterix (“*”) next to it, you’ll know that policy holders can enhance or change these benefits. What we will discuss here is the standard baseline benefits available to all eligible claimants.

Income Replacement*, Non-Earner, and Caregiver* Benefits

A person who cannot return to work as a result of a car accident may be eligible for income replacement benefits (IRBS), which pay accident victims 70% of their gross income up to a maximum of $400.00 per week. Generally speaking, this benefit is only available to people who were employed on the date of the accident or were working at least 6 of the 12 months immediately preceding the accident.  This benefit is payable so long as an accident victim is unable to return to their own job. However, two years after the accident, the benefit will only be payable if a person is unable to return to any job. Otherwise, the benefit is payable indefinitely, with adjustments made as claimants reach age 65.

A person who was not employed at the time of the accident, but who nonetheless suffers a complete inability to carry on a normal life as a result of the car accident may be entitled to a non-earner benefit of $185.00/week. This benefit is not payable until six months from the date of the car accident. So long as a claimant qualifies for this benefit, it remains payable, with certain adjustments made as claimants reach age 65.

Finally, primary caregivers unable to care for their children may be eligible for caregiver benefits, which will reimburse claimants for expenses they incur hiring others to care for their dependents up to a maximum of $250.00/week for the first child and an additional $50.00 for each subsequent child. Under a standard auto insurance policy, this benefit is only available to people who have suffered a catastrophic impairment. This benefit is payable for two years following the auto accident, following which time, it is only payable if the caregiver suffers a complete inability to carry on a normal life, in which case it may be payable for the duration of an accident victim’s entire life.

Lost Educational Expenses

An insurance company may pay up to $15,000.00 to reimburse car accident victims for tuition, books, equipment and room and board if they have incurred these expenses as part of an education program that they can no longer participate in as a result of the car accident.

Benefits for Damage to Personal Property

Standard policies include provisions that reimburse accident victims for reasonable expenses incurred to repair or replace personal items such as clothing, dentures, hearing aids, prescription eye wear, and any other items a person was wearing that were damaged in an accident.

Attendant Care* and Housekeeping* Benefits

Car accident victims unable to carry out personal care activities, such as grooming, bathing, meal preparation, etc., may apply to have the car insurance company pay for expenses incurred to hire an attendant to assist accident victims with these activities. In order to qualify for this benefit, car accident victims must (1) suffer more than a mere “Minor Injury”; and (2) have an occupational therapist assess a victim’s attendant care needs and submit an assessment and accompanying form to the auto insurance company.

Under standard automobile insurance policies, car accident victims who have not been catastrophically impaired may be entitled to up to two years worth of attendant care benefits of $3,000.00 a month and not more than $36,000.00 in total. Catastrophically impaired claimants may access up to $6,000.00 a month for incurred expenses relating to attendant care up to a maximum of $1million for the duration of their life.

Housekeeping benefits provide reimbursement for expenses incurred for housekeeping services rendered to car accident victims who are unable to complete their pre-accident housekeeping duties. Under standard policies these benefits are only available to car accident victims who have suffered a catastrophic impairment. In that case, the auto insurer may be obligated to pay up to $100.00/week for incurred housekeeping expenses.

Medical and Rehabilitation* Benefits

Car accident victims are entitled to payment of all reasonable and necessary medical and rehabilitation expenses not covered by a private health plan or OHIP. This may include physiotherapy, massage, chiropractic, or psychiatric treatment; a gym membership and sessions with a personal trainer; occupational or vocational therapy; assistive devices such as long handed brooms, shower stools or adjustable beds; and generally any other good, service or treatment that may be reasonable and necessary to reduce or eliminate the effects of an accident related disability or to facilitate a car accident victim’s reintegration into his or her family, society and the labour market.

The Ontario government has determined “most persons injured in car accidents in Ontario sustain minor injuries” and have therefore passed the Minor Injury Guideline (pdf), which limits medical rehabilitation benefits to $3,500.00 for all victims who have sustained a “Minor Injury”, as defined in the Guideline.

Car accident victims that sustain more than a Minor Injury, or are able to convince the insurance company that they are not bound by the Minor Injury Guideline, are eligible to receive up to $50,000.00 in medical and rehabilitation benefits. Catastrophically impaired accident victims may have access to $1 million in medical rehabilitation benefits over the course of their lifetime.

Death and Funeral Expenses

Sadly, car accidents sometimes cause fatalities. When they do, eligible spouses may be entitled to a lump sum payment of $25,000.00. Dependents of the deceased may be eligible to receive lump sum payments of $10,000.00 each.  The auto insurer may also contribute up to $6,000.00 towards a funeral.

Visitors Expenses

Insurers may repay reasonable and necessary expenses incurred by (immediate) family members, including grandparents and grandchildren, to visit the accident victim. Generally, this benefit is only payable for the first 104 weeks following an accident, unless the victim has been catastrophically impaired.

Sounds Simple, right?…

In this article, an attempt was made to make Accident Benefits as simple as possible to understand. In reality, the claims process is not so simple.  Accident victims must first fill out initial applications and make elections with respect to what weekly benefits they may claim, if any, often without knowing much about the process.

Next, submitting claims and receiving repayment for incurred expenses is complicated and takes time, and often, a claimant has already paid money out of pocket and is waiting weeks if not months (or years!) for the insurer to pay them back. More complicated still are the insurers rules regarding proof that expenses are incurred; in the case of housekeeping, caregiving and attendant care, claimants must first be eligible for the benefit (i.e. have purchased enhanced benefits or convinced the insurer that they have more than a Minor Injury), and then have to meet a whole other set of qualifying rules too complex to discuss here.

Similarly, claims for medical and rehabilitation expenses must be made on approved forms prior to receiving any goods, services or treatment. Once submitted, insurers have a right to scrutinize the applications and send claimants for assessments to determine whether the requested goods or services are reasonable and necessary. Then, once claims are denied, car accident victims must navigate the dispute resolution process, which involves mediation and then arbitration or lawsuits, if necessary.

Put simply, there’s rarely anything simple about the claims process and an experienced car accident lawyer can help explain the process to you and provide valuable assistance and advocacy in the event that the insurance company denies any of your claims.

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Our Toronto Personal Injury Lawyers give free consultations to anyone in Ontario.  Simply Ask your question by completing the form and an experienced Toronto personal injury lawyer will call you to answer your question.

By Floydian (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

By Toronto Personal Injury Lawyers

Technically speaking, “no-fault” automobile insurance describes a system of insurance where an accident victim is injured or their car is damaged, and they make a claim to their own insurance company; regardless of who caused the accident.  In Ontario, accident victims can make no-fault claims (also called “first party” claims) for property damage and accident benefits.[/caption]

Entitlement to Benefits Despite Causing the Accident

car-accident-lawyerAs an example, imagine a driver fails to stop at a stop sign, drives into an intersection, and gets into an accident with another vehicle causing damage to both vehicles and personal injuries to himself and the other driver.  Assuming he has collision insurance, our driver – whom we’ll call Dennis – can make a property damage claim to his own auto insurance company to repair his vehicle. He can also make a claim to his insurer for accident benefits, which includes, among other things, payment for medical and rehabilitation expenses and income loss. Dennis is entitled to make these claims despite the fact that he caused the accident.

Being at Fault For An Accident Can Raise Your Insurance Premiums

No-fault insurance permits Dennis to make a claim for benefits, but Dennis is not completely off the hook, as insurance companies always determine who is at fault for an accident, whether partially or completely. After each party reports the accident to their insurance companies, their insurers will investigate the accident and make a determination as to who was at fault or responsible for the accident using the “fault determination rules”, which set out common accident scenarios and describe how to attribute fault in each scenario.  Unless he has accident forgiveness as part of his policy, Dennis’ insurance premiums will likely go up when it is time to renew his policy. Next time Dennis is shopping for auto insurance, he’ll certainly remember to ask how an accident may affect his premiums (and you should too).

Negligence Claims

Car Sliding on IceIn addition to his premiums going up, Dennis is now exposed to a possible negligence claim for pain and suffering, loss of income and other damages brought by the driver he hit. Assuming he was not in breach of his policy and cooperates with his insurance company, the insurer will hire and pay for lawyers to defend him in this action, and the insurance company will ultimately pay the claim out, subject to the liability limits on Dennis’ policy.

In this lawsuit, the fault determination rules are irrelevant. The other driver’s lawyer will have to prove anew that Dennis was a negligent driver. Of course, under these circumstances, there is little doubt the accident was his fault. However, the other driver may have contributed to her own misfortune; she may have not been wearing a seat belt or had her signal on. If so, this is called “contributory negligence”.  You can be sure that Dennis’s lawyers will do their utmost to find instances of contributory negligence, which would reduce the amount of money Dennis’ insurance company would have to pay the other driver.

Conclusion

In sum, no-fault insurance means that regardless of fault, an accident victim – even a person who causes an accident – may have access to certain benefits from their own insurance company.   The issue of fault remains relevant both with respect to a person’s insurance premiums, and the rights of others to sue an at-fault driver for damages.

 

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By Toronto Personal Injury Lawyers

While insurance companies will often tell you that they are there for you when you need them most, the plain truth is that if you are involved in a car accident and sue the at-fault driver, an insurance company will nearly always step in to defend the claim.  In these circumstances, the notionally friendly insurance company becomes your adversary.  Put simply, the insurance company is not always your friend. This is a fact you should always bear in mind when sharing information and pictures with your “friends” on Facebook, Twitter and other social media sites.

The case of Kourtesis v. Joris serves as a good example of how insurance companies may “creep” on a plaintiff’s Facebook profile to troll for information to use against you at trial.

Fotini Kourtesis, was one of the plaintiffs in Kourtesis.  She was involved in a car accident as an 18 year old high school student.  She was hit from behind and there was no question that the defendant driver was at fault. The main issue at trial was whether Fotini sustained sufficient injuries to warrant an award for damages for pain and suffering and loss of enjoyment of life.

As a result of the accident, Fotini claimed to have suffered injuries to her neck and shoulders as well as memory and concentration problems.  As a result of these injuries, Fotini said, her social life had been ruined.

 Facebook Photos Used in Court

256px-Facebook_icon.svg[1]In the middle of the trial, the defendant’s lawyers gained access to pictures of Fotini that she posted on Facebook.  Possibly, the lawyer gained access through a Facebook friend of Fotini’s.  The Defendant’s lawyers then got an order from the Court allowing them access to more pictures on Fotini’s Facebook account.  The pictures showed, among other things, Fotini partying on St. Patrick’s day three months before the trial.

Fotini was given an opportunity to address the photos at trial and she provided an animated and detailed account of the times and places of the events depicted.  The Court found that the pictures contradicted her allegations regarding her social life being ruined, and that her testimony with respect to the pictures completely undermined her claim to have suffered memory and concentration problems.  Her claim for damages for pain and suffering was dismissed. In sum, the pictures and her explanations of those pictures sunk her case.

 Insurance Company Access to Facebook Photos Not Automatic

Following the decision in Fotini’s case, insurance companies’ lawyers’ requests to access accident victims’ Facebook profiles have been met with mixed success. On the one hand, the Court will not likely ever permit an insurance company full access to a plaintiff’s Facebook profile as much of the information is private and not relevant to the law suit. On the other hand, Courts are willing to conclude that there are likely relevant documents or pictures on a private Facebook account based on the nature of the services Facebook provides.

It seems that a plaintiff in a lawsuit has an obligation to disclose and produce relevant photos and documents on a Facebook account. Photos of a plaintiff sitting next to a pool, for instance, are irrelevant because they don’t prove anything one way or another. On the other hand, photos of an accident victim at the top of Mount Everest or finishing a marathon would certainly be relevant.

Conclusion

What does all this mean to accident victims and what lessons are there to be learned?

First and foremost, if you are the type of person who keeps a public profile, posts updates for the world to see and tends to live tweet every moment of your life, there is very little to learn; the insurance companies will have access to your public profiles and will search for anything useful to reduce the damages on your case.  So, the first lesson is, if you are going to use social media, to keep all of your social network profiles private and viewable only to your “friends” – and not “friends of friends”, which is what caused Fotini all that trouble.

People involved in personal injury lawsuits should certainly be aware that what they post online may end up as evidence in court and, therefore, should be careful not to make statements that are inconsistent with the photos they post online; don’t say you can’t walk for long periods of time and then post pictures of yourself finishing the most recent Tough Mudder or Iron Man competition.

The easiest way to make sure social media doesn’t complicate your case is to unplug from Facebook and other social media sites until your case is over.

Be Truthful

Ultimately, the best way to protect your interests as a plaintiff in a personal injury lawsuit is to be truthful about your limitations and consistent in your actions.


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    Car Accidents and the Law in Ontario

     

    What are your legal rights if you have been injured in an automobile accident? This article will provide you with a brief overview of your rights if you are the victim of a car accident in Ontario.

    The issue of compensation for a car accident usually involves not just the people who were in the accident, but the insurance companies. The forms of compensation available are best split into two categories: 1) Accident Benefits Claims and 2)Lawsuits.

    Automobile Accident Benefits Claims

    Ontario’s system of automobile insurance is a “no-fault” system. This does not mean that no one is at fault, or that compensation will not have anything to do with whose fault the accident was. What “no-fault” means is that regardless of who is to blame for the accident, any injured persons may receive some compensation, the compensation available is referred to as accident benefits. Therefore these benefits are available to any injured party in a car accident regardless of their role in the accident, be it a driver, a passenger or even a pedestrian. Accident benefits are claimed from your own insurance company, therefore a driver, passenger or pedestrian will make a claim from their respective insurance companies. An Application for Accident Benefits should be completed and submitted to your own insurance company as soon as possible following a car accident.

    Standard accident benefits include: medical and rehabilitation expenses, care giver and dependent care, income replacement benefits, attendant care and housekeeping expenses. The amount of money to which you are entitled to claim is dependent upon your circumstances and is governed by the “Statutory Accident Benefits Schedule” (or SABS).

    Lawsuits

    If you are injured in a car accident and you are not responsible for the accident, then you may sue the responsible party or parties for compensation, thus beginning a lawsuit, also known as a tort action.

    The party who is not responsible for the car accident has two years from the date of the accident, within which to commence a lawsuit. A lawsuit is commenced when a statement of claim has been issued.

    Damages

    The two primary heads of damages which are most commonly claimed in a lawsuit are: pain and suffering and loss of income.

    Pain and Suffering

    Pain and suffering refers to the injuries, both physical and psychological, sustained as a result of the car accident. The law in Ontario requires your injuries to be both permanent and serious. 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.  (See Recent Developments in Pain and Suffering and Car Accident Law)

    Loss of Income

    The rules regarding income loss entitle the injured parties to 80% of their net after-tax income loss up to the date of the trial and to 100% of any gross future loss of income following the trial.

    How Long Does it Take to Get a Settlement?

    A lawsuit can be a very long process that usually takes approximately 3 years before a settlement is reached.  It is important to temper your expectations if you are seeking a quick settlement.  The primary reason that the settlements take so long to reach is the amount of time it takes to get a proper prognosis from a physician with regards to your recovery from the injuries that you have suffered. This prognosis is vital to your claim. While the process may be long, your claim will not lose value as interest will accumulate on the amount that you eventually receive.

    See page for author [Public domain], via Wikimedia Commons

    Have you been injured?

    Our Toronto personal injury lawyers can help with any of the following:

    • Insurance Disputes,
    • Occupier’s Liability,
    • Long Term Disability,
    • Car Accidents,
    • Boating Accidents,
    • Trucking Accidents,
    • Motorcycle Accidents,
    • Construction Accidents,
    • Sex Abuse,
    • Child Abuse,
    • False Arrest,
    • Malicious Prosecution,
    • Fire Accidents,
    • Brain Injuries,
    • Spinal Chord Injuries,
    • Paraplegic Injuries,
    • Wrongful Death,
    • Dog Bites,
    • Slip and Fall, and
    • Product Liability.

    Our Toronto Personal Injury Lawyers Can Help

    Free Consultations with a Personal Injury Lawyer

    If you would like free legal advice about an injury, then feel free to fill out the form, Free Consultation with a Toronto Personal Injury Lawyer. A qualified Ontario personal injury lawyer who practices personal injury law will contact you to discuss your legal rights as soon as possible.

    By Molokaicreeper (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

    Slip and Fall Law in Ontario

    What is a Slip and Fall?

    Slip and Fall is the commonly used term by personal injury lawyers for when an individual is made to fall to the ground.  Although a Slip and Fall might occur due to a trip or for any other reason rather than a slip, it is still referred to as a Slip and Fall.

    Slip and Fall accident can happen in any number of ways and in any number of locations, whether it be on a sidewalk, in a grocery store, a parking lot, in somebody’s home or on their property.

    The owner of any property you enter onto has a duty to keep the premises safe.  If you fall because of ice, snow, a pool of water, debris, poor maintenance, poor lighting or any other kind of hazards you likely have a claim.

    Notice Periods

    Notices to Municipalities

    If you have a Slip and Fall accident on municipal property you may have as little as seven days from the date of the accident to give the municipality notice of the accident. Without providing this notice, you may not be able to proceed with a claim and may lose your right to sue! Therefore, it is strongly advised that you contact a personal injury lawyer as soon as possible following a Slip and Fall to ensure that your legal rights are preserved.

    Limitation Periods

    It is also important to be aware that since January 1, 2004, anybody who has a Slip and Fall accident has two years from the date of the accident in which to issue a claim. However, if you were involved in a Slip and Fall before January 1, 2004, the general limitation period is six years, but it may also be a much shorter time period, perhaps only as long as 3 months depending on whose property you fell on. Again it is important to contact a personal injury lawyer as soon as possible following a Slip and Fall to make sure that your rights are preserved and that you have not missed your opportunity to be compensated for your losses.

    By DrOONeil (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

    Brain Injuries

    Hiring a Toronto Lawyer for a Brain Injury

    A brain injury can often present complex legal and medical issues.  For instance, brain injuries cannot always be seen with conventional medical imaging.  Proving “mild traumatic brain injuries” can present unique challenges, and the injured person should ensure that the law firm that they hire has extensive experience handling these sorts of cases.  Proving the injury can often involve several costly medical assessments, and so injured persons should ensure that the law firm that they hire is financially capable of paying for and carrying those costs, through trial if necessary.

    Brain Injury Effects

    While a brain injury may be described as “mild” in comparison to more debilitating brain injuries, there is generally no such thing as a “mild” brain injury for most people.  The fact is that a mild traumatic brain injury can have far-reaching consequences for the injured person.  The injury could affect the amount of time that the injured person is able to work continuously or efficiently.  The injury could also cause significant fatigue and/or could affect the quality of the injured person’s work.  All of these could potentially have a very real effect on a person’s productivity, their ability to earn income, their relationships, or their ability to carry on a normal life.

    Brain injuries, even mild ones, can cause anger, frustration, difficulties with concentration, memory and other serious problems.  The injured person and their lawyer will have to consider the possible future effects of the injury to ensure that the injured person receives enough compensation to allow the injured person to get the help that they will need in the future.

    Help For People with Brain Injuries

    There is help available to injured persons.  This includes initial legal consultation, medical assistance and other support.  Much of this can often be obtained without payment by the injured person.  If an injured person is considering a lawsuit, it is in their best interests to contact a lawyer immediately to ensure that they do not do anything that prejudices their rights in the future.  As well, they will want to ensure that they take steps before the expiry of any applicable notice and limitation periods.

    Free Consultations with a Toronto Brain Injury Lawyer

    If you or a loved one have a brain injury and would like some legal advice then please submit a Consult a Personal Injury Form and a Toronto Personal Injury Lawyer will contact you right away to discuss your case.

    By Raysonho @ Open Grid Scheduler / Grid Engine (Own work) [CC0], via Wikimedia Commons

    Personal Injury News – New Changes to Benefits for Car Accident Victims

    On November 2, 2009, the McGuinty government announced a package of proposed reforms to the accident benefit (no-fault) car insurance system in Ontario. The proposed changes are expected to be implemented by the summer of 2010.

    The proposed changes will considerably reduce the standard benefits available to most people who have been injured in car accidents. Ontarians will still have the option of buying extra coverage when they purchase their car insurance.

    While catastrophically injured car accident victims will be affected by the changes, car accident victims who are deemed to be “non-catastrophic” will face the most notable reductions in benefits. Non-catastrophic car accident victims , in most cases, do not have access to funding for case management, which means that they may well require more accident benefits advice and assistance from social workers, discharge planners and nurses in the period before they retain a lawyer.

    Under the current legislation, there are often disputes about whether the car accident victims is “catastrophically impaired”. The outcome of the disputes are important because of the significantly increased benefits available to catastrophically injured car accident victims.  The number of disputes may well increase as non-catastrophic benefits are reduced.  While some “catastrophic impairments” are easy to identify (ie: quadriplegia), there are many that are not as easy (ie: someone who has sustained a 55% impairment of their whole person). It should be noted that the proposed changes include an, as of yet undefined, amendment to the definition of what “catastrophic” will mean.

    While not all of the changes have been identified yet, some of the significant changes that have been announced for non-catastrophic claimants are:

    *Housekeeping Benefits: Eliminated completely
    *Caregiver Benefits: Eliminated completely
    *Attendant Care Benefits: Cut in half to $36,000 maximum
    *Interest rate penalty to insurers for failure to pay timely benefits: Cut in half
    *Medical/Rehabilitation/Assessment benefits: *Cut by more than half, leaving $50,000 for all medical/rehabilitation and assessment needs.
    *“Minor Injury” Medical/Rehabilitation/Assessment benefits: restricted to $3,500. It remains to be seen how “minor injuries” will be defined

    The current system for car accident benefits provides $100,000 for non-catastrophic medical and rehabilitation needs, plus reasonable amounts for assessment costs requested by the car accident victim.  It also allows injured persons to obtain “rebuttal reports” to reply to insurance company reports that they feel are unfair. Funding for rebuttal reports will be completely eliminated under the proposed changes.

    Although $50,000 may be more than enough to satisfy the medical, rehabilitation and assessment needs of many car accident victims, there will likely be other cases where the available benefits are used up before the patient’s needs are satisfied. Further, because some patients are not deemed catastrophic until quite some time after the accident, there may well be car accident victims whose benefits expire before they reach the point where they can even meet the definition of being catastrophic.

    While catastrophically injured persons will continue to have access to one million dollars for medical and rehabilitation benefits, the cost of assessments will now be deducted from that amount.

    The assessment funding changes are significant because of the cost of assessments, the long wait to obtain specialist appointments through OHIP and the frequent need to reply to reports obtained by insurance companies. There will have to be a calculated balance between the need for no-fault assessment funding and the need to fund treatment.

    Non-catastrophic car accident victims , especially those without a personal injury lawyer, may need guidance from social workers, nurses and discharge planners about what type of assessments are vital and may also need other advice about how best to meet their treatment needs while conserving their medical and rehabilitation benefit limits.

    If a car accident victim has a viable lawsuit against the persons who caused the car accident, the assessments could potentially be funded by the claimant’s personal injury lawyer and claimed for in the lawsuit, freeing up the full no-fault medical and rehabilitation limits for treatment.

    The proposed changes will place increased importance on the availability of a lawsuit against the people who caused the car accident.  If a car accident victim needs exceed the available no-fault benefits, car accident victims can, in many circumstances, still pursue compensation as part of a lawsuit against the people who caused the car accident. However, car accident victims will have to wait until the successful completion of a lawsuit to get the money necessary to pay for their treatment or assistance with tasks of daily living. This may lead to an increased number of car accident victims who undergo treatment, or receive assistance, on the promise to pay for it upon settlement or resolution of their lawsuit.

    If you would like free legal advice about an injury, then feel free to fill out the form, Free Consultation with a Toronto Personal Injury Lawyer