Yesterday our law firm participated in a private global mediation in Hamilton. As an aside, if it weren’t for lawyers, this downtown Hamilton office tower would not exist. It seemed like every floor housed a law firm. One of the few floors which didn’t house a law firm was a Reporter’s Office for Examinations for Discovery, Mediations, etc (where lawyers go).
A drunk driver hit my clients.
Liability was not contested. It was abundantly clear to all of the parties that my clients didn’t get in their car that day intending to get hit by a drunk driver.
Their vehicle was a write off following the collision. It was a bad collision.
The at fault driver plead guilty to drunk driving and his license was suspended for 13 months. No doubt, his insurance premiums went up. But, as of today’s date, he is back on the road and driving with the rest of us.
My husband/wife client were shaken up after the collision. The husband sustained the worst of the injuries. The wife was able to tough through the pain, and get back to a semblance of brining normalcy back to her life. But the reality for both is that their lives will never be the same following this drunk driving collision.
It only seems fair that they be compensated for their injuries, pain and suffering. So you would think…
The law in Ontario is, for lack of a better term, TERRIBLE for innocent accident victims. I have no other way of describing it.
Here are some tidbits of information, which are used against innocent accident victims everyday in car accident cases in Ontario:
- Damages for Pain and Suffering, in Ontario, and the rest of Canada are capped at around $363,500. That maximum pain and suffering award is reserved for situations where the person has lost their limbs and can never walk or function again. If you can walk, or manage your activities of daily living; chances are that you won’t recover that max pain and suffering amount in Court
- Damages for Pain and Suffering are subject to a deductible. The monetary threshold beyond which the deductible amount does not apply is adjusted was adjusted from $123,016.99 to $124,616.21, in the case of damages for non-pecuniary loss from January 1, 2017, until December 31, 2017. The deductible for non-pecuniary loss when a tort award does not exceed the monetary threshold is adjusted from $36,905.40 to $37,385.17, in the case of damages from January 1, 2017, until December 31, 2017.The deductible for non-pecuniary loss when a tort award under clause 61 (2) (e) of the Family Law Act does not exceed the monetary threshold is adjusted from $18,452.70 to $18,692.59, in the case of damages from January 1, 2017, until December 31, 2017. These amounts only increase year after year. Where they got these amounts is beyond me….
- The Jury isn’t told about these deductibles at trial!!!!! If it slips to the Jury that there are deductibles at play, then a Judge will declare a mistrial!!!!! So, if a Jury awards you $50,000 at trial for your pain and suffering; that amount is reduced by $37,385.17 leaving the Plaintiff with just $12,614.83. What the government is telling you by enacting this deductible is despite the fact you may have voted them in to power, your pain and suffering isn’t worth very much. They don’t care.
- In addition to a deductible, the Plaintiff must also establish that his/her injuries meet a medico-legal threshold. Those injuries need to be found to be a “serious and permanent impairment“. If the injuries are neither serious, nor permanent, then despite the fact that liability may not be an issue in the case; the innocent accident victim recovers ZERO for his/her pain and suffering. This is NOT fair, but this is the law.
Things I’ve always found disgusting about these provisions:
- The $37,385.17 deductible for pain and suffering claims is MORE than some people earn in a year. It’s a terribly high number meant to detract individuals from suing or recovering compensation for their injuries
- These laws protect at fault defendants, and the insurers who indemnify they. They do NOT serve to protect innocent plaintiffs who have done nothing wrong, other than be in the wrong place at the wrong time. It makes no sense to protect at fault drivers, who more often than not pay NOTHING by way of compensation to the innocent accident victim
- The serious and permanent threshold, along with the deductible means that the government has intended for innocent accident victims to live with some degree of pain, and not get compensated whatsoever for those injuries. If you live with some pain, but you can manage to function, you will likely get ZERO.
- The system requires that innocent accident victims prove to the Court that they have sustained serious and permanent impairments. This is done through medico-legal evidence. These medico-legal opinions, medical records and evidence costs MONEY. This information and these opinions are NOT free. Do innocent accident victims who can’t work have the disposable income to spend on obtaining such evidence or reports? Insurers certainly have this sort of spending power. These spending battles favour insurers every time. The system is skewed towards insurers from the very start, which isn’t fair.
- In a system which requires medico-legal expert opinions for accident benefit claims, there are no costs awarded to the successful party. So, an injured accident victim may be required to spend $20,000 on medico-legal evidence or expert opinions, for $20,000 worth of benefits. Accident benefits were never supposed to work like this. They were supposed to be a consumer protection product. Instead, they have become a product too complicated for the average person to understand, and a product too expensive for the average person to pursue in Court without the assistance of an experienced personal injury lawyer
- The basic maximum income replacement benefit of $400/week has not increased with inflation since the 1990’s or so. Yet, the deductible for tort claims has more than tripled since that time.
- Fault for the accident in most cases is an after thought. All that matters are damages. The next important factor are the person’s employment history and future care cost needs.
- With the erosion of accident benefits, there has been no offsets to the tort system. That means that no only are accident benefits getting harder to claim, but general damages for your personal injury case are getting harder to recover as well.
- The only ones benefiting from these changes are large insurers. Insurance premiums have NOT gone down. In fact, they increased over the first quarter in 2017.
- I have never met an average voter who worked outside of the car insurance system in Ontario who was ever in favour of the increased deductible or threshold. Yet, these changes to auto insurance to make things better for insurers doing business in Ontario seem to be enacted year after year.