How to File a Personal Injury Claim?

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Have you suffered life-changing injuries as a result of a car accident, medical malpractice, a slip and fall accident or any other type of accident that was no fault of yours?

If so, you may be entitled to compensation from the at-fault party or parties.

However, this is rarely a straightforward process. No two cases are the same and they can become complex.

You will generally need to prove negligence or reckless behaviour in order to win a case. This may involve testimony from expert witnesses, CCTV footage, witness statements, access to medical records, etc.

On top of this, the insurance companies of the at-fault party often use strategies to minimize or delay payments or to avoid liability altogether.

That’s why most people who file a personal injury claim do so with the assistance of a personal injury lawyer.  If you need further support, please contact the lawyers at Vogel LLP

Can you file a personal injury claim?

Whether you can make a personal injury claim in Canada depends largely on the following factors:

  • Can you prove that you or a family member were injured?
  • Can you prove that the injury is related to the negligent or reckless actions of another person or people?
  • Can you demonstrate physical losses (e.g. physical pain, medical costs, lost wages)?
  • Can you demonstrate emotional pain and suffering?
  • Can you demonstrate expected future losses?

In most cases, a family member can make a personal injury claim on behalf of a loved one. This is often necessary when the victim is incapacitated due to their injuries, such as someone who suffers a serious traumatic brain injury in a car accident.

The family of a person who died as a result of an accident caused by the negligent or reckless actions of another party can also file a personal injury claim.

Bear in mind that there is a statute of limitations for personal injury cases set by each province in Canada. For instance, in Ontario, it is two years from the date of the injury. 

It is, therefore, important to start legal proceedings as soon as possible. Failure to file within the set time period means that the court will not be able to hear your case.

Does your insurance policy cover you? 

Your insurance policy may provide some cover for your losses but how adequate this cover is depends on the extent of your injuries.

Canada has a “no-fault” insurance system when it comes to car accidents – the most common reason for personal injury claims.

This means that the question of fault for a collision is temporarily set aside while damages and injuries are addressed.

On the face of it, this may seem beneficial as the insurance company pays the damage claims of all insured drivers, including the costs of repairing your vehicle and the costs of your injury such as ongoing medical treatment, rehabilitation and caregiver costs. This means that there is no waiting for court decisions on fault and damages.

If the accident is later found to be the fault of the other party, your insurance company then waives the deductible.

However, while your insurance policy covers you to some extent, if you’re seriously injured in an accident, it might not be enough. 

The no-fault system limits the amounts recoverable from both your insurance company and the at-fault driver’s insurance company. There’s also a sizeable deductible on court awards for pain and suffering.

This is when you’ll really require the assistance of a personal injury lawyer.

The bottom line, then, is if your injury is a minor one (and it is unclear whose fault the accident was) your insurance policy may provide acceptable cover. 

With more serious injuries where you are confident that another party was at fault, it is advisable to contact a personal injury lawyer.

Hiring a personal injury lawyer

For serious personal injury cases, the stakes can be very high. 

You may think that yours is an obvious case that the insurance company will settle for a fair amount.

In reality, this probably won’t happen unless you are prepared to fight for it.

It is therefore advisable in most instances to hire a lawyer who is well-versed in the process of claiming losses for personal injury victims, liaising with insurance companies and, if necessary, directing the litigation process against the at-fault party.

In the majority of personal injury cases, the insurance company of the at-fault party prefers to reach an out-of-court settlement. This reduces legal costs, may lead to a lower settlement figure and avoids potential reputational damage from a public trial.

While some aspects of your losses are relatively easy to demonstrate (medical costs or lost wages), your lawyer will be able to guide you on the more complex aspects, such as the value of emotional pain and suffering and future losses, if applicable.

An experienced personal injury lawyer will know approximately the total compensation figure that you should be entitled to and will guard your best interests when negotiating with the insurance company. 

However, insurance companies protect their own interests. They employ trained “adjusters” who are sophisticated and look to reduce payouts to an absolute minimum.

If the proposed settlement is too low, your lawyer may advise you to initiate litigation.

Filing a lawsuit

If you fail to reach a settlement with the at-fault party, your lawyer can file a civil lawsuit in the local branch of your state’s civil court. 

Your lawyer will have to prove in the courts that someone else’s negligence or reckless actions are responsible for your losses, in order for you to be entitled to compensation.

This may become a technical, time-consuming, and adversarial process but an experienced personal injury lawyer will be familiar with the strategies required to win such cases.

Note that it generally costs nothing to speak to a personal injury lawyer to discuss the general details of your case and to receive advice on your legal options. 

If you agree to file a civil lawsuit, the attorney may only take a fee if you are successful in your claim. Most work on a contingency basis.

June 30, 2020 · Tim Kevan · Comments Closed
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