PERSONAL INJURY LITIGATION
Litigation arising from personal injury or disability can arise in a wide-range of circumstances. If you are injured through someone else’s fault, you have a claim for damages against the at-fault party in most cases. Typically, a liability insurance policy will cover the negligence of the at-fault party. In the case of disability, your claim will most often be brought against a private insurance company.
In all cases of injury, it is very important to obtain medical treatment in a timely fashion. Even if your injuries might seem minor, it is best to been seen by medical personnel at or near the time of your injury. In some cases, the nature and extent of your injuries may change significantly over time and it is important in the context of a personal injury claim to have medical documentation to support your injuries and impairments.
We recognize that being injured or unable to work unexpectedly can be very stressful and difficult to cope with. The circumstances surrounding a personal injury claim can be very complex. It is not always obvious as to who should be notified of your claim, or the timelines for doing so. This is why it is a good idea to talk to a personal injury lawyer early in the process to get the guidance and direction you need. We do not charge for initial consultations respecting your personal injury claim. The initial consultation gives us a chance to evaluate your claim and provide our opinion on whether or how best to proceed. We do not charge any legal fees until your claim is either successfully settled, or brought to a successful judgment at trial.
Above all, it is important to develop a strong sense of trust in your personal injury lawyer. Litigation over personal injuries can be lengthy and difficult and it necessitates a solid rapport between the lawyer and client to achieve a successful result. We believe it is very helpful to our clients that we are local to both our clients, and to the York Region Court House in Newmarket. Where necessary, we are happy to arrange hospital or home visits at your convenience to discuss your matter.
ACCIDENT BENEFIT CLAIMS
Up until September 1, 2010, insured motorists had coverage for medical and rehabilitative expenses up to $100,000. This amount was, and still is, greatly increased if the injuries were determined to be catastrophic, but in the majority of cases the $100,000 limit applied. That limit or coverage has been cut in half to $50,000.
Not only has the coverage been cut, but certain med/rehab assessment costs that did not previously count against the $100,000, now count against the new $50,000 limit. Effectively, you now have less than half of your previous coverage.
There is also a new minor injury guideline. If your injuries fall within this guideline, your coverage for medical and rehabilitative expense is much, much lower again. There will, of course, be disputes as to whether an insurer who tells you that your injuries are minor has made a fair and proper determination.
Returning to those instances where the injuries are neither catastrophic nor minor, there is the option of buying back $50,000 of coverage so that you again have $100,000. While it may be unpleasant to pay more for the same coverage, the premium for this buyback is small. Personally, the writer of this article has bought back the lost medical and rehabilitative coverage.
The Housekeeping and Homemaking and the Caregiver benefits have been eliminated from basic coverage, unless the injuries are catastrophic. The coverage limit for Attendant Care has been cut in half. Again, most of what has been lost can be bought back for a small premium as part of optional coverage. However, in some instances your coverage will not be increased if your injuries are determined to be minor, even with the buyback.
The basic income replacement benefit is now calculated as 70% of one’s gross income, rather than 80% of net, up to a maximum of $400/wk. While 70% of gross will generally be more than 80% of net, the insurer will pay the same amount as before in most instances. This is because anyone making more than $30,000 per year is affected by the $400 per week cap for lost income.
The cost of optional coverage for a higher income replacement benefit is a little more than for some of the other items. Also, if you have private disability insurance or disability insurance through your employment, the $400 cap in your auto policy will be a lesser issue. However, a higher income replacement benefit is something you should discuss with your broker. Many of our clients regret not paying a little extra for better coverage.
There is helpful information on this subject on the website of the Financial Services Commission of Ontario. The link is as follows:
ASSAULTS INCLUDING SEXUAL ASSAULTS
If you have been assaulted and injured, you may have a claim against the perpetrator for damages for your injuries. In many cases, however, the perpetrator of the assault may have limited financial means available to pay for your damages, as liability insurance policies typically do not cover intentional actions. Factual circumstances surrounding an assault differ from case to case and there may be other parties partially responsible for the assault. The negligence of such other parties may be covered by a commercial general liability insurance policy.
As an example, if you were injured by someone in a bar, the bar may be partly to blame for the assault if the perpetrator was served too much alcohol prior to committing the assault or acted aggressively and was not removed from the bar. Or, if you were injured at an organized event such as an outdoor concert, it may be possible that failure to provide adequate security or to prevent over-crowding contributed to the assault. This is why it is important to seek legal advice regarding the circumstances surrounding an assault to identify all possible responsible parties, especially parties who carry liability insurance to pay for your damages.
One type of civil assault is sexual assault. Our law recognizes that sexual assault matters are highly sensitive topics to litigate, and the law is particularly lenient with regard to time periods in which to present a claim. If you were the victim of a sexual assault that occurred many years, or even decades ago, in most cases you will not be out of time to prosecute your claim. The law will consider when you became able to fully understand the impact of what happened to you and when you gained the emotional strength to make your claim. In some cases of sexual assault, such as where the perpetrator was in a position of trust or authority over you at the time the assault was committed, there may be no limitation period at all. As with general assault matters, it is very important to consider what other parties might be legally responsible for the occurrence of the sexual assault. By way of examples, in cases of sexual assaults by teachers, church ministers or camp counselors, the corporate entities controlling the church, school or camp, as the case may be, may have partial or full legal responsibility for the act of the perpetrating employee or volunteer. The evaluation of sexual assault claims requires a careful, detailed consideration of all of the relevant facts and circumstances by your lawyer.
CRIMINAL INJURIES COMPENSATION BOARD CLAIMS
Under the Compensation for Victims of Crime Act. persons who have either been victims of violent crimes or are family members of deceased victims are entitled to receive compensation from the Criminal Injuries Compensation Board.
There are a number of criteria that the board will consider once an application for compensation is made. While a criminal conviction against the offender(s) is helpful, it is not necessary to receive compensation. The board considers both the short term and long term suffering a victim has experienced.
A hearing often takes place in order for the board to determine the merits of the application. The board may award compensation for a victim’s pain and suffering, loss of income, reimbursement for counseling or monies towards future counseling. We assist an applicant from the drafting and submitting of the application to collecting evidence and providing representation at a hearing. We have also successfully claimed contribution towards legal fees.
Dog owners are responsible for their pets. In fact, in law, they are said to be “strictly liable”. This means that if a dog bites or attacks a person or another dog, the owner of the offending dog is very likely to be held liable for any damages resulting from the bite or attack. Situations where the dog owner may not be liable are quite limited. For example, if the person bitten was trying to injure the dog before the bite occurred, liability would be unlikely.
“Good” dogs do not get one bite. The dog owner will ordinarily be liable, even if his or her dog has never bitten anyone before. As in all cases of injury, the need for medical attention takes top priority. However, presuming medical care can be briefly postponed, you will need to obtain the name and contact information of the dog owner. It may also be prudent to contact your local animal control office. This is so as the dog may pose a danger to others but, additionally, the animal control office will investigate and create a report of the incident. This may help in buttressing your version of what occurred if there is disagreement down the road.
For more information, you may go to ontario.ca, click on “Laws” from the left hand column, then “Current Consolidated Law”, and then letter “D” for statutes. Then select “Dog Owners Liability Act”.
Finally, and once again, do not hesitate to call our office for advice. (This short article speaks to the injured. If your dog has done the biting, please advise your home insurer.)
LONG TERM DISABILITY AND CPP CLAIMS
If you become sick or disabled, and unable to work, you may have coverage through your employment for long term disability payments provided you can prove your claim medically. If you do not have group disability insurance through your employer and you have not purchased private disability insurance, you may have a claim for disability benefits through the Canada Pension Plan provided you have made sufficient contribution to the Plan. In Ontario, most disability policies are underwritten by large publicly traded insurance companies that handle many thousands of disability claims per year. If you are denied benefits by your insurer or you are terminated by the insurer much earlier than you or your doctor feel is fair, you likely have a valid legal action for your ongoing and retroactive benefits. Most long term disability policies potentially pay you until you turn sixty-five (65) provided you remain totally disabled from work, so a lot may be at stake. Moreover, your qualification for benefits may be important for other reasons such as ensuring that pension contributions continue to be made by your employer or that life and extended health benefit coverage remain intact. These issues can be complex. In the case of Canada Pension Plan claims, it has been our experience that the rate of initial denial is quite high. Given the limited financial resources of the Plan, it is important to try to differentiate your claim from the multitude of claims presented to the government so as to present your claim in its best light.
Sometimes hospitals and doctors make mistakes that cause harm to their patients. If you are one of those unfortunate patients, you need the help of a lawyer. At Monteith, Baker, Johnston and Doodnauth, we have lawyers who will help you receive the compensation you deserve.
Medical malpractice claims are often referred to as a battle of medical experts. In a medical malpractice trial each side will call experts to testify as to whether or not a doctor or hospital was negligent and whether or not that negligence caused harm to the patient. The judge will then decide which evidence he or she prefers, whether the doctor or hospital has been negligent, whether the doctor’s negligence caused harm to the patient and what compensation, if any, should be paid.
A doctor is considered to be negligent if he or she has done something which other doctors, acting reasonably, would not have done in the same situation or if he or she fails to do something that other doctors, acting reasonably, would have done in the same situation. The definition of negligence is similar in the case of a hospital.
It is usually difficult for a lawyer to give an opinion as to whether a doctor or hospital has been negligent in the first meeting with the client. In most instances, the lawyer has to first retain medical experts (in the case of a doctor, the same type of doctor), who will review all of the relevant medical records and provide opinions as to whether the doctor or hospital in question has been negligent and whether that negligence has harmed the patient. In some cases, the lawyer will want two or three opinions that if the doctor or hospital had not been negligent, harm to the patient would not have occurred. The initial investigation stage in which medical records are collected and reviewed by medical experts, who then provide their opinions, can be relatively expensive. Usually, it is only after this initial stage has been completed that a lawyer can give a confident opinion to the client as to whether or not a lawsuit against the doctor or hospital will be successful. In most cases, after first meeting the client, all the lawyer can say is that the matter is worth investigating.
Once the investigation stage has been completed, the lawyer and client meet to discuss whether to proceed with a lawsuit and the financing of the lawsuit. If it appears that there is a strong case, the lawyer will probably finance the lawsuit and wait to be reimbursed for disbursements and paid for his time until after the matter is completed. In cases which are only moderately strong, the lawyer may agree to be paid for his time when, and if, the claim succeeds, but may require the client to pay for the disbursements as they are incurred.
“Disbursements” refer to the lawyer’s expenses for things such as court fees, medical records or expert opinions. If the claim is successful, either through settlement discussions or trial, in addition to compensation for the harm you have suffered, you will be reimbursed for most, but not all, of your legal costs.
Because medical malpractice lawsuits are often difficult and complicated, we usually advise our clients to take legal action only if the doctor’s or hospital’s negligence has caused them serious harm and the evidence of negligence and causation is fairly strong. If you believe that your situation fits this description, you should call us at Monteith, Baker, Johnston and Doodnauth for effective representation in your medical malpractice claim.
It should be remembered that a lawsuit must be commenced within two years of the acts of negligence that caused the harm. The two year limitation period does not begin to run until you are aware, or should have been aware, of the acts of negligence and the resulting harm to you. If you are not sure about the application of a limitation period to your case, you should contact us as soon as possible to review your potential claim.
MOTOR VEHICLE ACCIDENTS
Claims may be made against the at-fault driver and the owner of the at-fault vehicle if a person has been injured and experienced:
Pain and suffering and loss of enjoyment of life.
Income loss and/or loss of earning capacity;
Loss of housekeeping and/or home maintenance capacity;
Inability to care for yourself or family members;
Out-of-pocket expenses (not covered by your own insurance company).
When can I make a claim for pain and suffering?
You can only sue for pain and suffering if you have sustained a significant, permanent injury, which seriously affects your life in a negative way.
Lawyers refer to the above legal test as a threshold that your injuries must meet. If your injuries meet this threshold, there is then a $30,000 deductible that applies to your damage award, if the award is $100,000 or less. If your damage award is more than $100,000 then the $30,000 deductible does not apply. For example, if your pain and suffering is assessed at $85,000, then you only get $55,000. If, however, your award is assessed at $110,000, then you receive the full $110,000.
The threshold and deductible do not apply to the negligence of certain defendants such as municipalities (failure to salt an icy road), bars (for over-serving a patron who then drives), or to manufacturers (defective seat belt). These are only a few examples. It is important to explore the facts of your case in detail with your lawyer to identify all potential defendants to maximize your chances of recovery.
Do I have a claim for loss of income?
If you have lost income since the accident or there is a substantial and real risk that you may lose income in the future, then you can sue for these losses.
Importantly, the threshold that applies to pain and suffering claims does not apply to claims for income loss, nor is there any deductible. Therefore, even if you don’t think you have suffered a qualifying injury for pain and suffering, you may still have an income loss claim.
What is a loss of housekeeping and home maintenance capacity?
The law views your ability to clean and maintain your own home as an asset of value. Therefore, if your ability to perform certain household chores or renovations or yard work is compromised, you may be able to make a claim for this loss. Again, the threshold for pain and suffering damages does not apply to this type of claim, nor is there any deductible.
What care costs can I claim?
If your injuries meet the threshold described above, you can claim for expenses for care that you require, which are not covered by your own insurance company. Examples of this type of claim include costs of physiotherapy, chiropractic, massage, the cost of medication, medical devices or aids, home modifications and many others. Essentially, you can claim for all reasonable and necessary medical expenses that you will have, having regard to the seriousness of you injuries. If you are so badly injured that you require someone to provide personal care, you may claim for the cost of this care.
What claims can my family make for my injuries?
The Family Law Act gives your family members the right to make claims that arise from your injuries. The main types of claims that family members can advance are the following:
The loss of guidance, care and companionship normally received from you, but which your family member is not receiving because of your injuries;
The value of nursing, housekeeping and other services performed by them for you;
Their income loss as a consequence of your injuries (some restrictions apply to a claim by a family member for both lost income and nursing services;) and
expenses incurred by them on your behalf, such as travel expenses.
There is a $15,000 deductible that applies to awards for loss of guidance, care and companionship provided the value of the award is less than $50,000. If the award is greater than $50,000, then there is no deductible. Historically, awards for family members have not been large. In many cases, the value of the award will not exceed the $15,000 deductible. The position of each family member needs to be discussed in detail with your lawyer.
The family members who are eligible to make claims are spouses, parents, grandparents, children, grandchildren and siblings.
How long do I have to sue?
You have two (2) years from the date of your car accident to commence a lawsuit against the at-fault driver and owner. This can be extended only in cases where you could not reasonably have known that you had a valid claim until some later time, or you were incapable of making the claim sooner. These determinations can be complex and should be reviewed in detail with your lawyer.
If the claim concerns a person who was a minor as of the date of the car accident, then, generally speaking, the two (2) year limitation does not begin to run until the minor turns eighteen (18) years of age.
Within 120 days of your accident, you are required to send a written notice to the at-fault driver and owner of your intention to start a lawsuit. If you have not done this, you can still sue within the two year period, however you can only claim interest from the date on which the written notice is given. It is therefore smart to contact a lawyer early.
You are also required to apply for Statutory Accident Benefits from your own insurance company within seven (7) days of the accident, or as soon as practicable, if you are intending to sue the at-fault motorist and driver.
Finally, these are not simple matters. If you have been hurt in a motor vehicle accident you should contact a lawyer who practices in this area. At Monteith Baker Johnston & Doodnauth we would be pleased to meet with you. There is no charge for this initial meeting and, thereafter, nothing will be charged for fees until your case is resolved.
If you purchase a product and it proves to be faulty, usually you can return it for a refund or demand that it be fixed. Sometimes a faulty product causes an injury. If the injury occurs in the normal use of the product because of some defect in either the design of the product or the manufacturing of the product, you can probably sue both the manufacturer and the seller of the product for compensation for your injuries.
SLIP AND FALL ACCIDENTS
“Slip and Fall” is a term used by lawyers in reference to a number of similar accidents that generally involve some sort of mishap on an unsafe surface. The accident may, in fact, involve someone slipping and then falling down, but the person may have tripped more than slipped, and it is not necessary that the person fell to the ground. A person may have stepped in a hole and sprained his or her ankle. That person may not have fallen down, but it would likely come under the umbrella of “slip and fall” accidents.
From the last example, one can see that there is often a connection between a slip and fall and occupier’s liability. If you are in a store or at the mall, the occupier is the owner of the store or the mall, or the lessor of the commercial space. Occupier’s liability is not restricted to commercial sites. A homeowner can also be liable if a guest is injured, but most lawsuits involve commercial defendants.
Returning to slipping and falling, there is usually something irregular with the surface that makes it dangerous. Ice in a Canadian winter is not an oddity, but the occupier of a parking lot in a shopping plaza needs to address this condition. When a mall owner or merchant is encouraging people to come to the store or mall, there needs to be a program of ploughing, salting and sanding to address ice. In a grocery store, the staff needs to be attentive and responsive to spills that may make a floor slippery. These matters must be taken seriously by the occupier. Many people will not suffer serious injury from such a fall, but a few will.
Occupiers are not expected to be perfect. Ice and spills cannot always be addressed instantaneously. Also, shoppers are obliged to take reasonable precautions for their own safety. We know ice is slippery and we are expected to take more care in such a situation. If a store is mopping the floor and has placed one of those “Wet Floor” signs down, we should avoid that area if possible, or take more care if not possible. If we do not take more care in these circumstances, we will be found partly responsible for our own injury and loss.
Once again, if you have suffered an injury in a situation like those above, or in some similar situation, please do not hesitate to phone our firm in order to get some advice.