Obstacles You May Face
Let’s face it … we live in an imperfect world. Accordingly, it should not be surprising that we have yet to meet the perfect client who has the perfect case.
So many factors can affect the presentation of your case and whether it is viable to pursue.
Typically, there are various barriers or obstacles that most cases most accident cases must overcome to be economically viable for a law firm to get involved. Below are several of the common ones we see with many cases.
LIABILITY – If you are totally at fault for your accident, there is no one you can successfully sue. On the other hand, you may be partially liable for your accident, known as “contributorily liable”. In that event, you may still have a case, but you will lose a percentage of your monetary damages award, based on the degree of your contributory negligence.
Or it may be a case of your word against their word in which case, if it is impossible to know for certain whose version of the facts is correct, will generally cause a liability finding of 50/50, reducing your damage award by half.
LIMITATION DATES – You have a certain amount of time in which you must sue the Defendant by issuing a statement of claim at your local court house. If you fail to do so, you have missed the limitation date which governs your case and you may be prevented from being able to sue as your claim may be what is referred to as “statute barred”.
PROOF – You may have incurred a loss but will have a difficult time to prove it. In the case of lost tips and gratuities, you may not have declared that income in the past with the Canada Revenue Agency and will have a difficult time proving money “under the table”.
Or you may have a certain symptom related to an injury you say you sustained, but you did not mention it to any of your health care providers until months following your injuries. Now your doctor may have a difficult time relating your symptom to the injury you say you suffered.
PREMORBID HEALTH – Say you had a certain medical problem in the months before the accident and that same part of your body is injured in the accident and made worse. For example, say you went to a chiropractor in the months before the accident for treatment on your low back and now, following the accident, you say you injured your back. It may not be easy to prove if your current low back pain is from the accident or from your premorbid (before the accident) health issues.
CREDIBILITY – If you are caught in a lie as the evidence of your case develops, it will affect your credibility (believability) and hurt your chances of success. The moral of the story – always tell the truth!
MITIGATION – To mitigate your damages, simply means to take reasonable action to make those damages less. This can be done for example by returning to modified employment to reduce your past income loss claim or by following medical advice and obtaining medical treatment which will likely speed up your recovery process and limit your claim for pain and suffering. If you do not mitigate your damages and do that which is reasonable following an accident, your claim will be weakened because your action or lack thereof was responsible for part of the loss you have sustained.
STATUTORY DEDUCTIBLE – If you have been involved in a motor vehicle accident your pain and suffering award will be reduced by a deductible of $30,000.00 in accordance with the provisions of the Insurance Act (of Ontario) unless your injuries are worth more than $100,000.00 in which case there is no deduction. Few cases involve injuries worth more than $100,000.00.
If a family member is presenting a claim for their losses in accordance with the Family Law Act (of Ontario), their award will be reduced by a deductible of $15,000.00 in accordance with the provisions of the Insurance Act (of Ontario) unless their damages are worth more than $50,000.00 in which case there is no deduction. Few such cases involve a loss worth more than $50,000.00.
THRESHOLD – If you have been involved in a motor vehicle accident, your injuries must meet a certain threshold of severity and permanence failing which, you will be denied any compensation for pain and suffering.
These are a few of the legal minefields your lawyer will have to navigate as your case proceeds. Simply put, being involved in a personal injury law suit can be very complicated and complex and professional legal advice is often needed!
Don't hesitate --- contact us today!