This is the most frequent question that people ask me. The real answer to this question is, “it depends.” No one really likes this answer but it is the truth. Whether or not you have a case is dependent upon the facts of your circumstances and those facts are as varied as life itself. Below I have set out some basic information to help you decide whether your circumstances warrant further investigation.
If you were in a motor vehicle accident, you want to know whether you have a “tort case.” The word “tort” simply means “wrong” and we often refer to the at fault driver in a motor vehicle accident as a “tortfeasor” or wrongdoer. There are essentially two parts to a personal injury tort case. The first part is establishing that the accident was someone else’s fault. If the accident was your fault, you are not entitled to be compensated to the extent of your own fault. So, if the accident was one hundred percent your fault, you will not be entitled to any compensation in a tort case.
After you establish that the accident was someone else’s fault, the second aspect of a lawsuit is what we refer to as “damages” which basically amounts to a sum of money. There are different kinds of damage or pots of money to be claimed such as economic losses, pain and suffering, future care costs and housekeeping and home maintenance losses. What you are entitled to and how much you are entitled to depend on the severity of your injuries.
You may have received letters from the insurance company of the at fault driver telling you that you may be entitled to compensation if your injuries pierce the “threshold.” The word “threshold” refers to a legal test that you must meet in order to make a claim for pain and suffering and for future health care costs (non-OHIP funded healthcare costs). In Ontario, if as a result of the use or operation of an automobile, the injured person has died or sustained a permanent serious disfigurement or a permanent serious impairment of an important physical, mental or psychological function he/she may make a claim for pain and suffering and health care costs. In Ontario, we also have regulations which actually tell us what permanent, serious and important mean.
We also look to the judge made law to help guide our opinion. Without a targeted discussion it can be difficult to know whether someone’s injuries will pierce the threshold which is why I would prefer to talk to you directly either by telephone or in person for free. Unless the injuries are obvious, it can take some time in order to assess whether a person has pierced the threshold. This is because each person responds to treatment differently. Some people are quick healers. Some people respond to treatment quickly and the interventions show real success at an early stage. Some people never get better. Further, some people show real promise at the beginning of treatment but later plateau and do not recover any further than that. Everybody is unique and thus, often expert medical people are needed to help with this assessment. This is why the answer to whether or not you have a case is often, “it depends.”
Please see the “Do I have a Case” questionnaire which is a quick survey of questions that you can answer in order to ascertain whether further investigation is warranted into whether you have claim. The questionnaire is not to be construed as legal advice nor is it a replacement for proper legal advice. It is merely a tool to help provide some basic answers quickly so that you can make some decisions regarding your available options. (18)