Legal Advice

Personal Injuries and Accident Claims

If you are injured as a result of a motor vehicle accident, you may well be entitled to recover damages from the third party, or more particularly, the insurers of the third party. The following points are presented for information purposes to explain various aspects of personal injury law regarding liability and the amount of the damages that can be claimed.

When there is an accident, there has to be a determination of liability as to who is at fault. The party at fault (or his/her insurers) would be responsible to the injured party for his/her damages.

The determination of liability can be an easy or difficult matter depending on the circumstances. In most cases, this determination is made by an insurance adjuster and accepted by all parties based on the insurance adjuster's experience. In a some cases it is not settled until lawyers are involved, and in some cases it takes the Court's determination. For example, in the case of a rear end collision it is obvious that the following car driver is 100% at fault. However, in a case of an over taking driver situation there may be a division of liability, i.e., 50/50 or 60/40 etc. In the case of a division of liability, each party would only receive damages based on the degree of fault of the other driver, i.e., 50% or 60%.

Once liability is settled, the next question is to what extent the injured party is entitled to damages. The first thing to note is that damages are divided into specials and generals and generals are further divided into pecuniary and non-pecuniary. In effect, the damages would be paid by the third party insurance company.

Special damages basically cover expenses for actual losses incurred by the injured party as a result of the accident to the date of the claim and which can be documented. For example, if as a result of an accident the party loses two months employment, has to make numerous trips to another town for medical treatment and has to have someone to carry out house work, all these expenses can be recoverable as they are actually incurred and can be verified. Also covered would be damaged property such as a vehicle, drugs, and the cost of treatments.

One aspect of special damages which should be noted is the "Collateral Benefits Rule". Quite often, when an injured person has to take extended time off as a result of his/her injuries, there is some loss of income coverage such as  sick leave or private insurance benefits. These payments are not deducted from the injured party's claim against the third party. The Courts have developed a line of reasoning known as the "Collateral Benefits Rule" which states that if such benefits are the result of a private plan or pursuant to a collective agreement for which the injured party pays directly or indirectly, then such should not be deducted from the award against the third party.  In other words, the third party would have to compensate the injured party completely for his/her loss of income and not take into account payments received by the injured party for sick leave received, insurance proceeds etc.

General damages are two fold:

1. Non-pecuniary- which is basically an award for pain and suffering. Compensation for pain and suffering involves a review of many factors such as;
   1. the extent of the injuries and any hospitalization required;
   2. the effect of the injuries on lifestyle, i.e., the ability to take part in sports, to drive etc.;
   3. whether such effect has any permanency;
   4. the extent of the medical treatment involved;
   5. whether any future treatments would be required.
      

   To determine what a particular injured person is entitled to, the lawyer has to obtain full medical reports and then refer to various Court decisions with similar injuries to determine a proper amount.

2. Pecuniary- which is an award for future losses and expenses such as future loss of income and future costs of housekeeping. In some cases, the injured party is faced with the possibility of not being able to work at all in the future or not being able to carry on the work he/she was trained for which would involve some form of re-training and/or working, with a reduced income. It often results in the inability to carry out normal housekeeping.
   
   To assess this situation, the injured party usually has to undergo special medical assessments such as an occupational therapy assessment and testing by a psychologist. Then once the future ability to work is determined, there has to be a vocational assessment done. Then the future loss of income or the future costs of care has to be determined by an actuary and set out in an actuarial report.

   The amounts that can be claimed for future loss of income or future costs for care or housekeeping can be quite high. The relevant factors would be such things as contingencies, discount rates and investment and administration fees.

There may be some cases where the third party may have insufficient or no insurance to cover a claim. To cover such a situation, a person may add special coverage at little cost to his/her own insurance to make up for the short fall in such an event. This is known as SEF 44 and needs to be checked.

Mention should be made to what is known as Section B Benefits. If an injured person has Section B in his or her own insurance policy, then a certain amount of their loss of income and/or costs of medical treatment and other medical aids would be paid  by their own insurance company. However, Section B does not compensate for pain and suffering, nor future loss of income. The Section B benefits are limited.

It is important in assessing the extent of damages to be claimed and reviewing any settlement offers, to ensure the injuries have resolved themselves. An effort should be made to determine if there are is going to be any long term problems, and if so, whether such will impact on the injured party's ability to work or carry out housekeeping chores. It is for this reason that a claim should not be settled quickly unless the medical problems have clearly resolved themselves.

In the event of a death, the dependents of the deceased can usually make a claim against the third party. Such a claim would include such things as the loss of future income, the loss of future care and housekeeping.

Most clients prefer us to take on injury claims on a contingency fee basis. What this means is that there are no fees to the injured party until the claim has been settled. At that time we will deduct the fees and costs from the settlement. If there is no settlement or judgment there will be no fees payable. In such cases, it is normal for the lawyer to provide a Contingency Fee Agreement to the client which clearly sets forth the terms and conditions.

While care has been taken to ensure the information contained herein is accurate, the firm does not warrant that all the information relayed is correct. The information provided is based upon Newfoundland law and is supplied for general interest purposes only. It is not intended, nor should be considered to be specific legal advice or opinion.

For more assistance contact us directly!

Back to Legal Advice