| When
a person becomes a victim in a motor vehicle accident, he or she enters
a strange, confusing world governed by complex statute and regulations,
including the Insurance Act of Ontario, which governs and regulates
the victim’s entitlement to ongoing statutory accident benefits
(“SABS”) from his or her own insurance company, as well
as many of the procedures to be followed in claiming against the at-fault
parties responsible for the motor vehicle collision in court proceedings.
Accident Benefits from Your Own Insurance Company
You may claim ongoing Statutory Accident Benefits (”SABS”)
from:
•The insurance company insuring the vehicle that you own or are
otherwise insured under, or;
•The insurance company of the vehicle in which you were a passenger,
or;
•The insurance company insuring the other vehicle involved in
the accident.
You may qualify for income replacement benefits equal to 80% of your
net income to a maximum of $400.00 per week, a non-earner benefit, or
a care-giver benefit if you are the primary care-giver for a person
in need of care. You may also be entitled to medical and rehabilitation
benefits of up to $100,000.00 for up to 10 years if you suffer a non-catastrophic
injury and $1,000,000.00 over your lifetime if you suffer a catastrophic
injury. There is also provision for attendant care benefits to pay for
your personal care, at $3,000.00 per month for up to 2 years and if
catastrophically injured, to a maximum of $1,000,000.00 at up to $6,000.00
per month over your lifetime. Other benefits may also be payable to
you.
Lawsuit
Against the At-Fault Driver
Your lawsuit claims may encompass recovery for pain and suffering; loss
of enjoyment of life; loss of income and loss of competitive advantage;
housekeeping and home maintenance expenses not covered under your Statutory
Accident Benefits, together with health care expenses.
To
claim for pain and suffering, you must have suffered a permanent and
serious impairment of an important physical, mental or psychological
function or permanent, serious disfigurement such as scarring. This
is part of the “threshold” test mandated by the Insurance
Act in favour of your insurance company.
You may also claim for your loss of income which is not subject to the
above threshold test or deductible. Accordingly, you may claim 80% of
your after-tax income loss up to the date of settlement or trial and
if you continue to be disabled from work, future or prospective income
losses are claimed at 100% of your gross income loss.
The Firm is well experienced in working with family physicians, medical
specialists and other health care professionals in properly documenting
the extent of the injuries suffered and the resulting degree of disability
and impairments suffered by the victim. The Firm works closely with
your doctors and we have access to rehabilitation specialists, occupational
therapists and others to provide the most comprehensive solutions to
the many needs and concerns of our clients.
At the same time, we work hand-in-hand with you, the client, in progressing
your case and in keeping you well informed as we proceed.
Most cases involving serious personal injury settle in advance of trial.
We have access to and good relationships with the many private mediators
whose business it is to conduct mediations with a view to an early settlement.
We have a reputation for tough and effective negotiation.
However, if your case does not settle, we have the seniority and experience
as trial counsel to effectively present your case in Court.
The Statutory Accident Benefits Schedule (“SABS”) under
the Insurance Act, R.S.O. 1990, c.I.8, provides
access to significant statutory benefits, regardless of fault, for those
injured in motor vehicle accidents, including medical rehabilitation
and attendant care benefits, weekly income benefits, caregiver benefits,
reimbursement for housekeeping and home maintenance and, in the event
of death, death and funeral benefits payable under the insurance policy.
Many
employers provide significant benefits under short and long term disability
insurance coverages. Many such insurance policies have dual definitions
of disability. Most policies, for a period of two years, have a disability
definition that encompasses the inability to work at the very employment
position or occupation pursued at the date of loss. After such period,
a secondary definition is engaged, intending to rule out further benefits
in defining disability as one requiring the inability to work at any
employment for which the insured is reasonably qualified by reason of
education, experience and other capabilities. Each claim will be governed
by the insurance policy that applies to the claim.
The Firm is well experienced in engaging professionals and other specialists
in determining a client’s vocational, physical and psychological
capabilities and in presenting our clients’ cases for ongoing
payment of the disability benefit. Often, we are able to achieve an
immediate lump sum settlement and payment in regard to all future payments
payable under the LTD insurance policy.
In this area of our practice, we are impressed by the serious injuries
that can often occur through a simple slip and fall, whether outside
in icy conditions or inside a shopping mall or other interior location.
Typical injuries involve fractures to the lower extremities, including
serious fractures to the ankle joint, fractured patellas (or knee caps),
broken arms and closed head/brain injuries. These
cases frequently are decided within the context of the Occupiers Liability
Act, R.S.O. 1990, c.O.2, as amended. This section of the Act provides:
An occupier of premises owes a duty to take such care as in all the
circumstances of the case is reasonable to see that persons entering
on the premises and the property brought on the premises by those persons
are reasonably safe while on the premises
The Courts have specifically carved out considerable case law obliging
the owners and occupiers of premises to clear sidewalks, steps and other
areas of access and egress from snow, ice or other hazard. We, as Canadians,
know our winters can be harsh and we, ourselves, must take care for
our own safety. However, we are entitled to expect reasonably prompt
and thorough snow removal and the application of salt, sand or other
abrasive within a reasonable time of any significant snowfall or freeze-up.
The Courts have imposed a high standard of care on the owners and occupiers
of commercial and public buildings, as well, respecting incidents occurring
in an interior setting.
Serious personal injury can occur through the use of faulty consumer
goods, elevators and amusement rides and devices, unsafe watercraft
and exercise equipment. We have access to design and other engineers
and specialists in reviewing the products or devices that have caused
your injury.
The designer, manufacturer and seller of goods all have obligations
to the ultimate consumer, whether direct as a matter of contract, in
tort or negligence liability, or under the Sale of Goods Act, R.S.O.,
c.S.1.
Serious injury and death in the course of medical treatment can and
frequently do occur in unexpected circumstances. In many cases, the
involved doctors, the hospitals, nurses and other staff have done their
best and the patient outcome is as unanticipated and shocking to them
as to the victim and his or her family. The question always remains,
did the treatment provided by the health care professional meet the
appropriate, reasonable standard of care and competency the patient
was entitled to receive? The standard of care required of a medical
practitioner has been long established as stated by Lord Hewart C.J.
in R. v. Batement (1925), 41 T.L.R. 557 at p.559:
If a person holds himself out as possessing special skill and knowledge
and he is consulted as possessing such skill and knowledge, by or on
behalf of a patient, he owes a duty to the patient to use due caution
in undertaking the treatment. If he accepts the responsibility and undertakes
the treatment and the patient submits to his direction and treatment
accordingly, he owes a duty to the patient to use diligence, care, knowledge,
skill and caution in administering the treatment…The law requires
a fair and reasonable standard of care and competence.
There is always the second question as to whether or not the professional
negligence caused the injury or death and this also requires a professional
opinion before conclusions may be drawn.
The point here is that a lawyer cannot tell you whether or not there
has been professional negligence in the course of treatment and care.
Our Firm has a number of consulting physicians, specialists and other
health care professionals on retainer who can be relied up on to provide
clear and helpful analyses and opinions on these two basic and essential
issues. Our initial consultations in this area are complete, detailed
and appropriate to enable just such an investigation.
We
provide the initial consultation on a no fees basis to facilitate this
important and necessary investigation. Please contact us for an appointment.
You should know that you have
limited time to commence proceedings against a health care
professional and the period may be as short as one year from the treatment
date. Shorter limitation periods may apply in special circumstances.
The legislation respecting limitation periods is undergoing significant
statutory change and amendments. It is vital to retain counsel at the
earliest opportunity to avoid your case from becoming statute-barred
as out of time.
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Motor Vehicle