Whether you are injured in a car crash or by slipping and falling on debris left on the floor while shopping at your local grocery store, you could have the right to recover damages as compensation for your injuries. Protecting and enforcing your right to be compensated starts by having a clear understanding of your rights and obtaining the services of an experienced personal injury lawyer to assist you.

Proving negligence

Unless you were injured in a motor vehicle accident subject to Ontario no-fault law, personal injury claims require proof that another party’s negligence caused the accident. Negligence is based upon owing a duty to act reasonably so as not to cause harm to another person. A store owner, for example, has a duty to keep the premises in reasonably good repair to avoid causing injury to people entering them. The following are the four elements that must be proven to establish negligence and a right to recover compensation:

• Existence of a duty of care owed to the injured party
• Breach of the duty of care by the defendant, the party to be held responsible
• Damages suffered by the person making the claim
• The damages suffered were caused by the conduct of the defendant

The evidence needed to prove negligence depends on the facts and circumstances of a particular case. There are a number of situations under which a personal injury claim may arise, including:

• Vehicle collisions
• Medical malpractice
• Animal attacks and dog bites
• Premises liability, including slip-and-fall accidents
• Product liability arising from defective products

When any of these or other situations are the result of careless or negligent behaviour, a claim may be asserted against the responsible party.

Recoverable damages when you suffer personal injuries

Injuries suffered through the fault or misconduct of another party are not limited to those of a physical nature, such as broken bones, lacerations and head trauma. Your injuries could include emotional and psychological harm, such as post-traumatic stress disorder.

The damages awarded after a trial or through a settlement negotiated by your lawyer are intended to make you financially whole. Your compensation could include the following:

• Medical expenses, including the cost of anticipated future medical treatment
• Lost income, including future earnings lost or diminished due to the extent of your injuries
• Scarring and disfigurement
• Disability
• Pain and suffering

There is a limitation on the amount a court can award to you for pain and suffering damages. The maximum is $366,000.

Limitations imposed by Ontario no-fault in car accident claims

Personal injuries in Ontario car accidents are handled through no-fault insurance. If you are injured in a car accident your claim is filed with the insurance company issuing the policy on your vehicle regardless of who was at fault in causing the accident. Pain and suffering damages are not included when filing a no-fault claim.

No-fault insurance applies to most injuries you might suffer in a car accident. You do have the right to file a law suit, including a claim for pain and suffering, if you suffer a serious injury. Serious injuries are those which result in serious permanent disfigurement or serious impairment of a psychological, mental or important physical function that is considered to be permanent in nature.

Ontario personal injury lawyers

The personal injury lawyers at Diamond & Diamond have years of experience successfully handling personal injury claims for compensation for individuals. If you have been injured in an accident, you should speak to one of our lawyers. Call the Diamond & Diamond 24/7 injury hotline at 1-800-567-HURT or visit our website to speak to someone now. We offer free consultations and case evaluations to injury victims throughout Ontario.

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When an accident victim meets with a Toronto lawyer to talk about filing a claim for compensation, a topic that must be touched upon is the difference between pain and suffering awards in the U.S. and Canada. News stories about multimillion dollar awards for pain and suffering in the U.S. simply do not happen in Canada. Actually, to be more accurate, they cannot happen because of a series of court decisions by the Supreme Court of Canada that have come to be known collectively as “the trilogy.”

Tort law and compensating victims

A tort is a wrongful act or the failure to act resulting in injury to another person. If the injured party can prove the act or omission was the result of negligence, courts can award compensation in an effort to make the victim whole again. Common sources for tort claims include the following:

• Car and truck accidents
• Defective products
• Premises liability, such as slip and fall, dog bites and failure to provide security
• Professional malpractice

Most of the compensation awarded to a victim is in the nature of compensatory damages. Compensatory damages, as the term implies, are awarded to make the victim whole. This is accomplished by placing a dollar value on the injuries. This is relatively easy when awarding compensation for such things as:

• Medical expenses
• Damage to property
• Lost salary or wages
• Costs associated with hiring a housekeeper to help while recovering

A victim could also be entitled to compensation for pain and suffering. Unlike other forms of damages, pain and suffering can be difficult to quantify.

Cap on pain and suffering: The trilogy

How to handle requests for compensation for the physical and emotional pain and suffering endured by an accident victim made its way to the Supreme Court of Canada in 1978 in three cases challenging the amount of compensation an injured person could receive. The court ruling in the cases established a cap on pain and suffering compensation. The $100,000 cap set in 1978 is reviewed each year and adjusted based on the rate of inflation. It is now approximately $366,000.

The cap applies only to pain and suffering because of what the court in 1978 referred to as the lack of an “objective yardstick” by which the amount of compensation can be calculated. The court did not, however, extend the cap of compensation to a victim for the cost of future care or lost future earnings due to the severity of the injuries the individual suffered.

Ontario monetary threshold and pain and suffering awards

If someone’s injuries were caused by a motor vehicle accident in Ontario, there is a legal threshold that must be met to avoid the effect of a deductible on pain and suffering awards. For example, awards for pain and suffering must exceed $124,616.21, the threshold for 2017, to avoid being subject to a deductible of $37,385.17. If, for example, a court awards an accident victim $100,000 as compensation for pain and suffering, it will be reduced by the deductible leaving the victim with $62,614.83.

A personal injury lawyer can help

The outstanding personal injury lawyers at Diamond and Diamond have years of experience handling all types of tort claims involving serious and disabling injuries. Their knowledge of the laws throughout Canada controlling the conditions under which courts may award pain and suffering compensation is put to use to obtain the best possible award for the people they represent. Call our 24/7 injury hotline at 1-800-567-HURT or visit our website to speak to someone now about your claim. Consultations are free, and we have offices located throughout Ontario.

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