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:
1. Pain and suffering and loss of enjoyment of life.
2. Income loss and/or loss of earning capacity;
3. Loss of housekeeping and/or home maintenance capacity;
4. Inability to care for yourself or family members;
5. 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.