As a personal injury lawyer that has been representing motor vehicle accident victims and their family members for the past 15 years, I’d like to share some of the information that I review with my clients at the start of every case. Knowledge is power and the process of educating my clients starts during our first meeting.
Toronto personal injury lawyer shares the basics every car accident victim should know
A. What type of lawsuit can a motor vehicle accident victim bring?
When a person is injured in a motor vehicle accident, which was caused, even partially, by someone else, the injured person can sue the person that caused the accident. This type of lawsuit is based in tort law and is called a negligence claim. A tort is when someone commits a civil wrong that causes a claimant to suffer loss or harm. A negligence claim is one type of tort.
B. Who are the parties and players in a motor vehicle accident lawsuit?
Plaintiff
In motor vehicle accident cases, the plaintiff is the injured person that sues the person or persons that caused the motor vehicle accident. Plaintiffs can also include family members of the injured person including, grandparents, parents, siblings, a spouse, children, and grandchildren. Family members that are plaintiffs are often referred to as “Family Law Act claimants” because their ability to sue is based on the Family Law Act.
Defendant
The defendant is the person that the plaintiff is suing for damages or money (also known as compensation). In the lawsuit, the plaintiff claims that the defendant caused the motor vehicle accident to occur and is therefore responsible in law for the injuries and losses suffered by the plaintiff. In a motor vehicle accident case, the defendants are usually the driver and owner of the other vehicle. Sometimes they include road authorities (i.e., a city, a town, or the province) responsible for the roadway or intersection where the collision occurred.
Insurance Companies
In most motor vehicle accident claims, the defendant has an automobile insurance policy which will respond to the plaintiff’s lawsuit on behalf of the defendant. This is because in Ontario it is mandatory for every vehicle to be insured. The insurance company will hire a lawyer to represent the defendant and will pay any settlement or award that the plaintiff receives. This is beneficial to the plaintiff because most individual do not have the financial means to pay a settlement or judgment.
Plaintiff’s lawyer/counsel
The lawyer representing the plaintiff is referred to as the plaintiff’s lawyer or plaintiff’s counsel.
Defence lawyer/counsel
The lawyer representing the defendant is referred to as defence counsel or the defendant’s lawyer.
Adjuster
An adjuster is a person that works for the insurance company. The plaintiff’s lawsuit is assigned by the insurance company to an adjuster. The adjuster will hire a lawyer to represent the defendant. The defendant’s lawyer will report back to the adjuster about the lawsuit. The adjuster is the person that instructs the defence lawyer during the lawsuit. They will also be the person that decides how much to offer the plaintiff during any out of court settlement discussions.
C. The key steps in a lawsuit
1. Notice letter
In motor vehicle accident cases, the first step is to send a notice letter to the proposed defendant and their insurance company, if known. Generally, a notice letter includes some information about how, when, and where the motor vehicle collision occurred as well as a brief description of the accident victim’s injuries.
2. Pleadings
Generally, a lawsuit is started when the plaintiff files a Statement of Claim with the court. A Statement of Claim is a document that identifies who the plaintiff(s) and defendant(s) are, the types and amounts of damages (compensation) being claimed, the facts supporting the claims including a description of how the collision occurred and the nature of the plaintiff’s injuries, and the allegations of negligence against the defendant (what the plaintiff says the defendant did that was wrong).
After the Statement of Claim is filed with the court it must be personally delivered to every defendant named in the lawsuit. Someone called a process server is hired by the lawyer to do this.
A defendant in a lawsuit must file a Statement of Defence in response to the Statement of Claim. Together, these documents are referred to as the “pleadings”.
3. Affidavits of Documents
In a civil lawsuit, each party (plaintiff and defendant) must prepare an affidavit of documents and provide it to the opposing side. The affidavit is a sworn document that states the party has conducted searches and made requests of others to become informed about all of documents that are relevant to the lawsuit. The affidavit contains three schedules (or lists) of the relevant documents. Schedule A is a list of all the documents that the party agrees to provide the opposing party. Schedule B is a list of all documents the party believes are relevant but refuses to produce because they are privileged. There are specific rules regarding privilege that a lawyer should explain to their client. Schedule C is a list of all documents that the party once had but no longer has in their possession or control.
The documents that will be commonly listed in a plaintiff’s affidavit of documents in a car accident case include the following:
- Police records;
- Property damage records including photographs;
- Ambulance and paramedic records;
- Hospital records;
- Clinical notes and records from treating doctors and therapists;
- Employment files;
- Income tax returns;
- Documents relating to Statutory Accident Benefits Schedule claims;
- Health records from before the motor vehicle accident; and
- Records from any disability insurer or collateral health benefits insurer.
4. Examination for Discovery
In a civil lawsuit, each party is made available to answer questions under oath from the opposing party’s lawyer. This is called an examination for discovery. Before the examination begins, the party being examined will take an oath to tell the truth just as a witness would do before giving evidence at a trial. The questions asked during an examination for discovery must relate to the pleadings (the Statement of Claim and Statement of Defence). The party being examined will have their lawyer present to ensure the process and questions are proper.
In a motor vehicle accident case, the plaintiff is asked questions about their lawsuit. This includes questions about how the collision occurred, the injuries suffered, the treatment received, details of any lost income, details of how other activities (housekeeping, hobbies, etc.) have been impact by the plaintiff’s injuries, and details of the plaintiff’s pre-collision health.
It is important that plaintiffs are properly prepared by their lawyers before the examination for discovery.
5. Mediation
A mediation is a settlement meeting whereby the parties and their lawyers will seek to resolve the motor vehicle accident claim with the assistance of a mediator.
6. Pre-trial
A pre-trial is a mandatory step whereby the parties and their lawyers meet with a judge to discuss the motor vehicle accident case. Most importantly, the judge will see if the case can be settled.
7. Trial
The last and final step of any lawsuit is a trial. If the parties cannot settle the case outside of court, their lawyers will take the case to trial and a judge, or a jury will decide the outcome of the lawsuit.
D. Types of Compensation:
In a motor vehicle accident case, the following types of damages (compensation) are commonly claimed by the plaintiff:
- Pain, suffering, and loss of enjoyment of life;
- Loss of income, earning capacity, and competitive advantage;
- Future care expenses including future treatment costs, assistive devices, home modifications, and personal support/attendant care services;
- Loss of caregiving capacity; and
- Out-of-pocket expenses.
At Beyond Law, our car accident injury lawyers are experienced in handling serious motor vehicle accident claims in Toronto and throughout Ontario. We work tirelessly to represent injury victims. We believe in empowering our clients through knowledge. If you or a loved one has been injured in a car accident, please contact us so we can discuss how we can assist you.
We are here to help.
Kate
