What Is My Case Worth? Assessing Personal Injury Damages in Ontario

One of the first questions that clients often ask is: “How much is my case worth?” It’s a natural question, and one that both lawyer and client need to consider carefully before proceeding. However, in the early stages of any case, this can be difficult to answer definitively. It often takes weeks or months to assess the extent of your injuries, or the full impact of what the injury will mean to your life. It takes an experienced and knowledgeable lawyer to guide you through the legal process and make sure you are properly compensated.

In most personal injury cases, a plaintiff will receive a monetary damages award from the person who was at fault for the accident (the defendant.) The defendant’s insurance company is responsible for paying these damages. In 90% of personal injury cases (such as motor vehicle accidents, or slip-and-fall accidents), the two parties will reach a settlement prior to trial.

Basically, there are three types of damages available in personal injury law suits:

1. Pecuniary or Special Damages. This refers to the financial impact of the injury on your family’s life. It can include past and future financial costs, which your lawyer will argue for on the basis of invoices, bills of sale and expert evidence. Pecuniary damages also include compensation for past and future income loss, for future medical and rehabilitation services, and for loss of competitive advantage in the marketplace. Also considered in this category are housekeeping services (when necessary,) out-of-pocket expenses incurred, and claims by family members under Ontario’s Family Law Act.

    

2. Non-Pecuniary or General Damages. This term includes the less tangible things you may have lost as a result of your injury, such as pain and suffering, or loss of enjoyment of life. These cannot be proven using evidence, and are at the discretion of the judge. The Supreme Court of Canada capped the amount of this type of award, which today is approximately $330,000. This upper amount is available in only the most catastrophic cases.

    

3. Punitive Damages. Very occasionally, punitive damages are awarded. This happens if an insurance company is found to be operating in bad faith. Punitive damages require conduct that is: “highhanded, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour.”

The damages awarded to you are called “compensation” because they are meant to compensate you for what you have lost due to the accident. Generally, severe injuries with significant impact on a plaintiff’s life are worth more than minor injuries. But there are many variables in the assessment of personal injury damage claims. Each case must be treated differently, because each situation is unique. For example, two plaintiffs may have very similar injuries. However, the first plaintiff may receive more compensation because she is the only wage-earner for a young family, while the second plaintiff is single. In some cases, the plaintiff’s own actions may have contributed to the accident. When this is evident, a judge may reduce the award accordingly. For example, if you fail to wear a helmet and you have a motorcycle accident, you may be up to 15% liable for your own injury, even if the accident was not your fault. A plaintiff who was alcohol-impaired when driving at the time of the accident may be up to 45% liable for his or her injuries.

In certain cases, there may be two or more defendants. In these situations, a judge will apportion a percentage of the liability to each of the defendants.

In order to assess your eligibility for compensation, you and your lawyer will need to assess many aspects, including:

• The nature and severity of your injury
• How the injury occurred
• The impact that the injury has had on your ability to work and the amount of lost wages
• How long recovery and rehabilitation is expected to take
• The amount of future lost wages
• Whether the accident damaged or destroyed any of your property
• The effect the injury has on your ability to perform daily tasks or care for yourself
• Cost of care
• Cost of future care
• How the injury has affected your enjoyment of leisure and family life
• What family members have been deprived of due to your injury
• Medical expenses you have incurred
• Future medical costs that are likely to be incurred

An experienced personal injury lawyer will be able to evaluate your medical records, along with the circumstances of the accident, and make calculations based on similar cases he or she has handled, or on case law precedent.

Be sure to choose a law firm with lawyers who are experienced in personal injury law. Sokoloff Lawyers is one of Toronto’s best-known firms, and our lawyers will fight for the compensation you deserve.