What Are My Rights After a Car Accident?

  1.   Where do I start?
  2.   Are there any time limitations?
  3.   What can I sue for?
  4.   When can an injured person sue for general (pain and suffering) damages?
  5.   What happens if the injured person’s injury "meets the threshold"?
  6.   Do the principles of "meeting the threshold" apply to non- automobile defendants? (ie., mechanics, municipalities, taverns)
  7.   Does the injured person have to meet the threshold in order to claim for loss of income?
  8.   How soon can the injured person begin receiving compensation for loss of income?
  9.   How much can the injured person receive before and after the trial?
  10.   Can the injured person claim health care expenses in a law suit?
  11.   What are other pecuniary losses?
  12.   Can family members sue?
  13.   What is my claim worth?
  14.   How long will it take to settle my claim and will I have to go to court?
  15.   What are your fees?
  16.   What is your office's approach?
  17.   What are the steps in a court action?
  18.   What should I bring to our first meeting?
Answers
  1.   Where do I start?
  A.   If your car accident has just happened:
    
  1. If you are suffering from the injuries sustained in your car accident, then contact your family doctor immediately to schedule an appointment. It is important to keep your family doctor notified of your injuries and follow through on any medical recommendations such as physiotherapy, medications and other treatment. If you do not have a family doctor then seek treatment at the nearest walk-in medical clinic or the local emergency room.
  2. Review our online assessment form, complete it and send it in to us. One of our Personal Injury / Car Accident lawyers will be pleased to provide you with a legal assessment of your claim. Our Personal Injury / Car Accident lawyers are able to provide you with some idea as to the nature of your claim and what the next legal steps would be in your case in order to preserve your right to bring a claim at a future date. Our Personal Injury / Car Accident lawyers can also assist you in arranging medical assistance including any housekeeping assessment. One of our Personal Injury / Car Accident lawyers will be in contact with you by the next business day with our assessment and to arrange an appointment. If you are unable to attend at our office then one of our Personal Injury / Car Accident lawyers will come to see you.
  3. Notify your car insurer immediately and make an application for accident benefits. You can contact your insurance broker or the insurance company directly to report the accident. You will then be contacted by an Accident Benefits adjuster who will start your claim. Even though you have been injured by someone else, in Ontario an injured person receives medical benefits through the injured person’s own car insurance. This should have no affect on your insurance premiums as long as the car accident was not your fault. If your Accident Benefit insurer wants to obtain a sworn statement from you then you should contact our Personal Injury / Car Accident lawyers immediately, before you provide a sworn statement.
     If you are already receiving medical assistance and have set up your accident benefits with your car insurance company then:
     Review our online assessment form, complete it and send it in to us. One of our Personal Injury / Car Accident lawyers will be pleased to provide you with a legal assessment of your claim. Our Personal Injury / Car Accident lawyers are able to provide you with some idea as to the nature of your claim and what the next legal steps would be in your case in order to preserve your right to bring a claim at a future date. We will be in contact with you by the next business day with our assessment and to arrange an appointment. If you are unable to attend at our office one of our Personal Injury / Car Accident lawyers will come to you.
    
OR
     Contact our office immediately for a legal assessment of your claim. It is important to review with a Personal Injury / Car Accident lawyer what steps have been taken to date and to ensure that you have not missed any important steps and that you have not lost your right to bring a claim to recover damages.
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  2.   Are there any time limitations?
  A.   A general rule is that you have 2 years from the date of the accident to bring a claim against the party that injured you. It is important to review the matter with one of our Personal Injury / Vehicle Accident lawyers as soon as possible to make sure that you have not missed your opportunity to sue for compensation.
     If you are past the 2 year anniversary date of the accident you should contact our Personal Injury / Vehicle Accident lawyers immediately to review whether you may still bring a claim for damages and losses that you have suffered. It is possible that your right to sue may survive the initial 2 year limitation date but this should be reviewed right away. There are also a number of additional limitations for suing the other driver and to deal with your own insurance company for medical coverage.
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  3.   What can I sue for?
  A.   Your claim can include damages for a number of different areas. Some of the damages include:
    
  1. general damages for pain and suffering;
  2. past and future income loss;
  3. loss of competitive advantage in the marketplace;
  4. future medical and rehabilitation expenses;
  5. housekeeping and home maintenance services;
  6. special damages which includes out-of-pocket expenses;
  7. claims by family members.
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  4.   When can an injured person sue for general (pain and suffering) damages?
  A.  
To sue for these damages the injured person must prove that the injury "meets the threshold". The threshold has become very complicated. You should consult with our personal injury lawyers to determine if your injuries would meet the threshold.
The following is the current threshold definition as outlined in the insurance legislation:
Definition of Permanent Serious Impairment of an Important Physical, Mental or Psychological Function
4.1 For the purposes of section 267.5 of the Act,
“permanent serious impairment of an important physical, mental or psychological function” means impairment of a person that meets the criteria set out in section 4.2. O. Reg. 381/03, s. 1.
4.2 (1) A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:
1. The impairment must,

  1. substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,
  2. substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, or,
  3. substantially interfere with most of the usual activities of daily living, considering the person’s age.
2. For the function that is impaired to be an important function of the impaired person, the function must,

  1. be necessary to perform the activities that are essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,
  2. be necessary to perform the activities that are essential tasks of the person’s training for a career in a field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training,
  3. be necessary for the person to provide for his or her own care or well-being, or
  4. be important to the usual activities of daily living, considering the person’s age.
3. For the impairment to be permanent, the impairment must,

  1. have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve,
  2. continue to meet the criteria in paragraph 1, and
  3. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances. O. Reg. 381/03, s. 1.
(2) This section applies with respect to any incident that occurs on or after October 1, 2003. O. Reg. 381/03, s. 1.
Evidence Adduced to Prove Permanent Serious Impairment of an Important Physical, Mental or Psychological Function
4.3 (1) A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person’s claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act. O. Reg. 381/03, s. 1.
(2) The person shall adduce evidence of one or more physicians, in accordance with this section, that explains,

  1. the nature of the impairment;
  2. the permanence of the impairment;
  3. the specific function that is impaired; and
  4. the importance of the specific function to the person. O. Reg. 381/03, s. 1.
(3) The evidence of the physician,

  1. shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and
  2. shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine. O. Reg. 381/03, s. 1.
(4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile. O. Reg. 381/03, s. 1.
(5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function. O. Reg. 381/03, s. 1.
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  5.   What happens if the injured person’s injury "meets the threshold"?
  A.   A. There is a statutory deductible that reduces the amount that the insurer for the at-fault car driver has to pay for general (pain and suffering) damages. Prior to August 1, 2015, there is a $30,000.00 deductible from the amount of damages that the injured person would otherwise receive unless damages awarded to the injured person would exceed $100,000.00. In that case then there is no deductible.
     Effective August 1, 2015, the Ontario government amended the Insurance Act to increase the amount of the deductible to account for inflation. This amount will increase at the start of each new year based on the rate of inflation. As of August 1, 2015, the statutory deductible is $36,540.00. The threshold at which the deductible applies (also referred to as the vanishing deductible) has been increased to $121,799.00. For damage awards that exceed this amount, then the deductible would not apply. This amount will increase at the start of each new year based on the rate of inflation.
     At this time it is uncertain whether the new deductible will apply to cases that have been started prior to August 1, 2015. The Ontario government did not provide clarification in their legislation.
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  6.   Do the principles of "meeting the threshold" apply to non- automobile defendants? (ie., mechanics, municipalities, taverns)
  A.   No. They only apply to the extent that the injured person’s injuries were caused by the negligence of other drivers and/or owners of the vehicles.
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  7.   Does the injured person have to meet the threshold in order to claim for loss of income?
  A.   No. The threshold only applies when the injured person is suing for general damages.
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  8.   How soon can the injured person begin receiving compensation for loss of income?
  A.   The injured person cannot receive compensation for loss of income for the period covering the first 7 days after the collision.
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  9.   How much can the injured person receive before and after the trial?
  A.   Before trial, the injured person can receive only 80% of their net loss of income, less any accident benefits paid by their own insurance company. After trial, the injured person can receive 100% of their gross loss of income (less any accident benefits which are received).
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  10.   Can the injured person claim health care expenses in a law suit?
  A.   If the injured person has sustained an injury that meets the threshold definition outlined above, then the injured person is able to claim the cost of all future medical and rehabilitation expenses to be incurred as a result of the car accident. This would be medical and rehabilitation expenses in excess of amounts paid or available from your own accident benefit insurer (the injured person’s auto insurer). Our personal injury lawyers will arrange to have a medical report prepared to assist in determining future medical needs. This may require hiring the services of an Occupational Therapist or Certified Future Life Care planner to provide a report on future medical and rehabilitation needs and attendant care needs. An actuary or accountant will be retained to provide the present cost of the future value of these medical and rehabilitation needs.
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  11.   What are other pecuniary losses?
  A.   Pecuniary losses relate to items that may require the injured person to put out their own money to hire someone or company to perform services that they would have performed on their own but for the car accident. A common example of these types of losses include the cost of hiring somebody to perform the injured person’s daily activities (ie., housekeeping or home maintenance, like snowblowing or lawn mowing). In order to properly assess these damages our personal injury lawyers will obtain the services of a Future Life Care planner and an actuary/accountant to value the future services.
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  12.   Can family members sue?
  A.   A. Yes. In the event of death or injury to a car/motor vehicle accident victim, as provided for in Ontario’s Family Law Act (FLA), family members including spouses, siblings, children and grandchildren can bring a claim for the losses including the loss of care, guidance and companionship of the injured party. Prior to August 1, 2015, non-pecuniary FLA claims were subject to a $15,000.00 statutory deductible where the non-pecuniary damages do not exceed $50,000.00. After August 1, 2015 the Ontario government changed the legislation to allow the deductible amount to be adjusted for the rate of inflation. The deductible amount has been changed to $18,270.00 and will apply for non-pecuniary damages up to $60,899.00. It is uncertain at this time whether the new deductible amounts will apply to cases that have been started prior to August 1, 2015. The amount of the deductible and the vanishing threshold will be adjusted by the rate of inflation (upward) at the start of each year.
     In the case of a fatality, there is no deductible that applies to non-pecuniary damages for FLA claimants.
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  13.   What is my claim worth?
  A.   It is difficult to assess the value of your claim without considering a large number of factors. Some of these factors include the nature of your injury, the cause of the injury and the impact that the injury has on your ability to work and/or on your activities of daily living including homecare and recreational activities.
     Once we have received sufficient medical information from your health care providers, and any medical specialist, then our Personal Injury / Car Accident lawyers will be in a better position to provide you with a more accurate assessment of your claim. We can do this by reviewing the extensive case law available to us, identifying similar cases where previous decisions have been provided by the courts and considering previous personal injury cases that our Personal Injury / Car Accident lawyers have handled.
     The first place to start is to contact our office directly, or through the online assessment form, to speak with one of our Personal Injury / Automobile Accident lawyers.
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  14.   How long will it take to settle my claim and will I have to go to court?
  A.   A case can settle at any time. However, in order to ensure that you receive proper advice and representation from us, there are many factors that have to be considered before settling your claim. Usually, the more serious the injuries then the longer it takes to settle your claim. The reason for this is we need to obtain the proper medical documentation to support the injuries that we say are due to the car accident and the effect that the injuries have on your life presently and in the future.
     It will usually take at least 12 to 18 months before our Personal Injury / Car Accident lawyers are in possession of the information we need to provide you with a proper assessment. Once the proper information has been received, your matter can then settle at any time. It is important to note that no settlement will be arranged until you have provided us with your clear instructions. Our Personal Injury / Car Accident lawyers will obtain your instructions before we make any offer to settle. We will also obtain your clear instructions before any settlement proposal is accepted.
     Most personal injury matters settle before court and do not proceed to trial. It has been said that as many as 98% of claims settle before court. Your matter can settle at any time prior to a final verdict at trial. If a settlement cannot be negotiated before trial, then it could take 3 to 4 years before your matter will be heard in court.
     In most instances the matter settles through negotiations directly with the lawyer for the defence. Another approach is through a private mediation. A private mediation involves the lawyer for the insurance company and a representative of the insurance company along with a private mediator. At settlement mediation both sides present their theory of the case and then there are negotiations between the parties to try and settle the file.
     One of the keys to our Personal Injury / Car Accident lawyers successes at negotiation, or mediation, is to ensure that there is a thorough understanding of your medical condition, your medical prognosis and the future impact of those injuries on your ability to work and to carry out your usual activities of daily living. This will often require the assistance of medical experts. In most instances it is estimated that to properly prepare your claim, and understand the future impact of your injuries, it will take 2 to 3 years before any settlement. However, each claim is different and our Personal Injury / Car Accident lawyers will be able to give you a better and more accurate assessment once we have more details about your case.
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  15.   What are your fees?
  A.   We understand that when you have been injured in a car accident this has a devastating affect on your health and also on your ability to continue to earn income as you had before the car accident. You will have the benefit of the experience of our Personal Injury / Car Accident lawyers, and our Personal Injury team, actively working on your case and you will not have to pay any fees until we have obtained a settlement for you. Our fee is based on a contingency arrangement, which means that we charge a percentage of any settlement you obtain. If there is no settlement then you will not owe us anything.
     Our Personal Injury / Car Accident lawyer will review our complete fee arrangement with you at your first meeting. We provide you with a written fee agreement so that you know exactly how much we will be paid for our services on your behalf.
     Our maximum percentage contingency fee charged is 25%.
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  16.   What is your office's approach?
  A.   Our office operates on a team approach. A Personal Injury / Car Accident lawyer will be assigned primary responsibility for your matter. Assisting the Personal Injury / Car Accident lawyer will be a number of clerks. Through our network of contacts, we will recommend, depending on your condition and medical needs, health professionals to assist. Injuries arising from car accidents can be very complicated as we are dealing with several insurance companies.
     Our Personal Injury / Car Accident lawyers and our Personal Injury team are working to ensure that you obtain proper compensation for your injuries and we also assist your medical team to help you obtain proper diagnosis and treatment for your injuries. Our team approach allows us to make sure that your file stays active and that you obtain prompt and effective service from our office.
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  17.   What are the steps in a court action?
  A.   This is a general outline of some of the steps in a court action:
    
  1. Notice letter
    This is a letter that is sent out immediately to the person that caused your injuries. The letter advises the person about your potential claim and that they should notify their insurer about your claim.

  2. Exchange of court documents
    Usually near the limitation date for your claim, a Statement of Claim is filed (issued) with the court and is then served personally on the person that caused your injuries in the car accident. The insurance company for the party that injured you will then hire a lawyer and respond with a Statement of Defence.

  3. Examinations for Discovery
    This is a significant step in your claim. An examination is where we have an opportunity to question, under oath, the person that caused your injuries. This is important for confirming the circumstances of the accident and establishing the basis for liability on the part of the person that we claim injured you. You will also be questioned by a lawyer on behalf of the insurance company for the person that injured you. At this examination you will be asked a wide range of questions including your current medical condition, details about the accident, the injuries you received, your pre-accident medical condition, treatments that you have received, the effect that the injuries have had on your work and your ability to carry out your usual activities of daily living including housekeeping, home maintenance and recreational activities.

    There are some questions that you may consider quite personal, that are asked at the examination. Most questions are allowed. One of our Personal Injury / Car Accident lawyers will be in attendance with you at the examination and if there is a question that we consider inappropriate then we will object and you will not have to answer unless instructed by us.

  4. Fulfilling Undertakings
    After the examination, there will be a number of undertakings (promises to provide additional information to the other lawyer). It is important that the undertakings are completed as soon as possible following the examination and that the information requested be forwarded to the other side. The information requested includes additional medical information from health care providers you have seen including your medical records from before the accident, employment information and prior income tax information. Our Personal Injury team will follow up on the undertakings and advise you of the information that we will require from you.

  5. Attendance at Defence Medical Examinations
    As part of the court process, the defence is entitled to have you attend their physicians for an assessment. The physician hired by the defence lawyer will then provide the defence lawyer with a medical legal report that will be used by the defence at trial. Depending on the injuries that you have sustained, you may have to attend upwards of three examinations. Before you attend at a defence medical appointment, it is important that you review with our Personal Injury / Car Accident lawyer so you will have some idea as to what to expect and prepare for the appointment. We will talk to you about keeping a written record of your visit noting the time you arrived, who you saw and for how long, how long was your overall assessment and some notes about the appointment and how you felt after the appointment. As with most defence medicals, do not expect the report to be helpful to your claim.

  6. Attendance with our own medical experts
    Our Personal Injury / Car Accident lawyers will arrange to have you seen by experts selected by us to provide us with a medical legal opinion that will form part of our case at trial. Only medical experts will be permitted to provide an opinion at trial about your current condition, the cause of your injuries and the impact of those injuries on your life, now and in the future. The medical experts will be in addition to your own health care providers, including your family doctor and/or your primary treating physician.

  7. Trial
    If your matter is not settled prior to this point, then we will proceed to trial on your behalf. Prior to reaching this stage our Personal Injury / Car Accident lawyer will provide you with a fair assessment of your file, the potential for success at trial and outline any options that are available to you. Our Personal Injury / Car Accident lawyers and our Personal Injury team are more than prepared to take any matter to court on behalf of our clients where we feel that our clients have not been provided with a fair offer to settle by the opposing insurance company and we consider the prospects for success at trial to be good.
  8. For detailed information of the processes involved in a civil case, please visit the Ontario Ministry of the Attorney General.
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  18.   What should I bring to our first meeting?
  A.   At the first meeting, which will take approximately 1 hour, you will meet with one of our Personal Injury / Car Accident lawyers where we will obtain information about the following:
    
  1. details about the car accident;
  2. your current and pre-accident medical condition;
  3. treatments that you have received to date and any that are scheduled;
  4. current and past employment;
  5. the impact of the injuries on your employment and your activities of dialing living, including around the home and recreational activities; and
  6. photographic identification (ie. copy of your driver’s licence)
     We would like you to bring in all documents that you have accumulated so far in connection with the accident including documents dealing with your medical treatment, any medical assessments, all correspondence with your insurance company and the police report. It would assist if this information was put in chronological order. This information will assist us in providing you with a preliminary assessment at our initial meeting. If these documents are not available we will be able to obtain this information once you have hired our firm.
     The first step towards success in your personal injury matter starts with contacting one of our Personal Injury / Car Accident lawyers. You can call our office directly or send us your information through our simple online assessment form. Our Personal Injury / Car Accident lawyers look forward to assisting you with your serious matter.
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Deutschmann Law concentrates its practice in matters concerning car accidents, motorcycle accidents, pedestrian accidents,bicycle accidents, catastrophic injury, serious injury, brain injury, spinal cord injury and disability insurance claims. Serving Kitchener, Waterloo, Cambridge, Brantford, Ayr, Woodstock, Guelph, Milton, Elmira, Tavistock, Tillsonburg, Ingersoll, Norwich, Elora, Fergus, New Hamburg, Ontario and surrounding areas.

“Deutschmann Law Professional Corporation” is practicing under the name Deutschmann Law.
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