How do Personal Injury Cases Work?

lawyer meets with client about personal injury case

If you have been hurt in an accident caused by someone else’s negligence, you may have a right to seek compensation by way of a personal injury lawsuit.

How do I bring a claim?

Your lawyer will draft the document that starts the lawsuit, which is called the “Statement of Claim”. The Statement of Claim includes:

  • The date(s) of the accident/injury;
  • How the accident occurred;
  • Who was involved;
  • An outline of the amount of money or “damages” you are claiming as a result of your accident;
  • The facts that support your entitlement to damages; and
  • References to relevant legislation.

The other party, which in car accident cases will usually be the at-fault driver’s insurer, will respond to your claim in a Statement of Defence.

When do I have to bring a claim?

In Ontario, you have two years from the date of an accident to file a claim. If this is not done, you may lose your right to bring a lawsuit to seek compensation for your injuries.

There are some exceptions to this rule, including circumstances where children are injured or in cases of sexual assault. If you are unsure, you should consider contacting a lawyer.

Regardless of the nature and severity of your accident-related injuries, it is important to seek medical attention and to consider speaking with a lawyer as soon as possible.

Your lawyer will collect relevant information to evaluate your potential claim. Gathering information, such as medical records and police reports, will be easier done sooner rather than later. Witnesses are also more likely to remember how an accident occurred if they are interviewed shortly thereafter.

How long does a claim take?

While the duration of personal injury claims vary, the process can take several years. Some factors which influence the length of time it may take to resolve a claim include your age, the number of parties involved, and the nature and severity of your injuries.

In most cases, it is not until the long-term impact of your accident-related injuries are established that the appropriate amount of compensation can be determined. In other words, in order to resolve a claim, your injuries will likely need to be completely healed; have reached a point where improvement is unlikely; or be predictable by health care professionals.

How much does it cost?

Many personal injury lawyers in Ontario work on a contingency fee basis, which means that you will not be required to pay anything unless there is a settlement of your case. If your matter is settled, whether in advance of or following a trial, you will typically be required to pay to your lawyer a percentage of what he or she was able to collect. Average contingency fee retainer agreements range from about 15-40% and may vary depending upon the stage at which the litigation is resolved.

The contingency fee arrangement provides access to the expertise of a lawyer that would otherwise be unavailable to many. Without this type of arrangement, few could afford a lawyer to bring forward a case for compensation.

How much money can I expect?

You may be eligible for “general damages”, also known as damages for “pain and suffering”. In Canada, there are maximum amounts that can be paid for pain and suffering, currently set at about $360,000.00.

In Ontario, you may also be able to claim for the cost of future care/treatment, lost income, various out of pocket expenses, and other compensation based on the circumstances and nature of your injuries.

The amount you will collect as a result of your accident-related injuries depends on several variables, including:

  • Whether you are partially responsible for the accident;
  • The severity of your injuries;
  • Your prognosis;
  • The cost of your medical and rehabilitation treatment as well as other expenses related to your injuries;
  • Your pre-accident income;
  • Your age; and
  • Whether you are receiving income or treatment funding from other sources, such as an LTD policy, ODSP, Ontario Works, an auto insurance policy, or extended health benefits.

Will I have to go to court?

It is unlikely that you will have to attend court. It is, however, likely that you will have to participate in what is called an Examination for Discovery. Your lawyer’s office will schedule, help you prepare for, and attend with you at the examination.

At an examination, each party is questioned under oath by the other party’s lawyer. The examination occurs in the presence of a court reporter who prepares a transcript of the evidence.

 

Anna Stoll
Written by

Anna is an associate lawyer on the personal injury team of Siskinds LLP. She has had the privilege of working closely with Douglas Bryce, a partner at the firm.

Anna holds a B.A. from the University of British Columbia and a J.D. from the University of New Brunswick. She was called to the bar in 2016 and is a member of the Ontario Trial Lawyers Association.