Discussing plaintiff car accident injury law defeats and what it can teach us
This article discusses a recent Court decision and the dangers that injured plaintiffs must consider and be aware of when seeking compensation for their injuries and damages.
Too often in lawyer advertising in Pickering, Whitby and Oshawa Ontario you see taglines like “maximum compensation” and other similar expressions of strength and an uncomplicated rosy future.
Too often people call me and say that another lawyer has, without even seeing a single medical or other record in their case, told them that their case is worth massive amounts of money. They ask me whether its a fair assessment or whether the other lawyer is just quoting them high figures to get them to sign up with them.
I think that its important to be fair and specific when explaining the law and damages assessment both when you are considering a case and when taking the case through litigation. In this article, I want to spend some time discussing some of the dangers in plaintiff injury litigation.
Unfair as the dangers may be, they exist and so we have to deal with them. An April 4, 2018 decision in A.B. v. Waite makes that abundantly clear. The full decision is attached here:
Click here: waite
In that case, the Judge made the following comments:
“This is a disastrous outcome for the plaintiff. It would only have been worse had I granted the threshold motion….
It also illustrates how annual indexing of the monetary threshold for unreduced general damages and annual indexing of the deductible may in short order make unreduced general damages largely unattainable. A review of jury awards in this jurisdiction over the past decade would reveal that general damages in excess of $130,000.00 are very much the exception. There is no evidence that jury verdicts have become more generous to keep pace with inflation.
In conclusion I am compelled by the Insurance Act and the Regulations to reduce the jury verdict of $118,371.00 to $5,760.00. Judgment may issue for the latter amount and I may be spoken to with respect to costs.”
To translate that into laymans terms, the plaintiff (injured person) was awarded $118,371.00 by the jury, but that was then reduced to $5,760 because of the “decutible” on pain and suffering and the deduction of collateral benefits etc.
The reason for these reductions is that Ontario’s government believes that a deductible of over $38,000 off of pain and suffering is fair and believes that the innocent injured person who has a permanent and serious injury should pay that deductible, instead of the at fault person who ruined their life. The government also says that the innocent person should pay a further deductible of 30% of their income loss up to trial and any collateral benefits that they paid for should further reduce the award paid by the insurer. The guilty person typically pays $0 out of their own pocket. The government also says that the “deductible” must be kept secret from a jury.
What happened in this case is that the jury awarded money for pain and suffering but it was eaten away at by the huge deductible and the “past income loss” awarded was eaten away at by the collateral benefits the person received (ie: disability benefits, income replacement benefits etc). The jury declined to award any future income loss.
There would now potentially be costs risks to the plaintiff in a case like this (meaning that the plaintiff might have to pay the insurance company costs because they got so little at the end).
The big issue in this case was the future income loss component because of the deductions on the other damage areas. The Jury did not accept the plaintiff’s arguments about future income loss.
In hindsight, the plaintiff may well have done better by opting for something called “simplified procedure” or even small claims, where the amount that you can recover is lower, but the rules and barriers are not as complex and daunting for injured plaintiffs. It is very important to consider appropriate procedure early on and throughout the case.
Hindsight is of course 20/20 and no one can criticize the injured person in this specific case for taking a shot if they felt that they were likely to lose significant income into the future. However, it does make it clear that each step in these cases should always be analyzed very carefully and the risks and benefits need to be considered at each step along the way.
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