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My car accident and Long Term Disability Claims are worth over a million dollars (Ontario)

If you asked any injured accident victim, or long term disability claimant how much they believed their case to be worth, you would get all sorts of varying ranges of damages.

Most injured accident victims and disability claimants don’t understand how the law works. They also don’t understand how the laws of damages work for their respective personal injury claims. The laws of damages deal with quantifying the value of a personal injury claim.

Our lawyers would love a system where you can arbitrarily make up numbers to assess general damages for claims.

The limitations of those damage awards would only capped at horizons of your imagination.

You can start with guestimating that the value of your claim is $10,000,00. But why stop there? Why not bump up the value of your claim to $20,000,000……But why stop there?!?!? $30,000,000 is a larger sum than $20,000,000…..You can keep going until your face turns blue. There are no limits aside from your imagination.

Unfortunately for claimants and their personal injury lawyers, the laws of damages don’t work like that.

Our lawyers like to use the example of selling real estate when understanding how the laws of damages work for personal injury law claims. We like using real estate because it’s a tangible example which the majority of our clients seem to understand.

Assume that our personal injury lawyers have magically turned in to your very own real estate agent. And your case has been turned in to a home which you want to sell. How much do you think that your current residential dwelling or a comparable dwelling would sell for? The price of your home all depends on the size, condition, location and demand for your property.

Fair market value for other similar properties on the market, along with past sales figures need to be considered when pricing your home as well.

If other similar properties on your street all sold for between $650,000-$750,000, and we listed your home at $3,000,000 when it’s no different than those other homes which sold for $650,000-$750,000, then there will likely be some buyers who will come visit to see why the price is listed so high. It may turn in to a spectacle. Is the home plated in gold? Are there diamond encrusted ceilings? Is there are fountain in the backyard made of precious gems?

But, if there is nothing to distinguish the home listed at $3,000,000 from the other homes on the street which have sold in the past for $650,000-$750,000, then it’s clear that the home is not priced right and will not sell for close to the $3,000,000 you are seeking. You like won’t get any offers because all of the buyers will be scared off by the unrealistic price tag.

Personal injury cases are much like buying and selling real estate. There is a fair market value for each case. No doubt some cases break records, but for the most part, not every case is a record breaking case.

You may not want your case to settle out of Court. You may want to proceed to trial, and that’s perfectly ok. But if you are seeking to settle your case out of Court, you will need to understand the basics about how damages work. An insurer won’t negotiate in good faith if the figures which you offered to them aren’t realistic.

Here are some concepts regarding the laws of damages as they apply to car accidents you need to understand:

  1. Damages for Pain and Suffering are capped in CANADA at around $371,000 or so, give or take inflation. The upper limit of those damages are reserved for someone who has lost all of their limbs, lost their minds, require 24/7 attendant care and cannot function independently or without medication. Recovering $1,000,000 in general damages for pain and suffering has never been done in Canada. This would certainly be a record which the Supreme Court would need to reconsider their trilogy of cases which set the cap for damages for pain and suffering back in 1978 (Andrews v Grand and Toy, Teno v Arnold and Thornton v Board of School Trustees)Goldfinger-logo-icon-300x300
  2. There are deductibles for pain and suffering claims from car accidents in Ontario! That means that the insurer does NOT have to pay the full value of the claim! This translates in to the innocent accident victim not being made whole on their award. Here are the deductibles for 2017 for your reference:
The monetary threshold beyond which the deductible amount does not apply is 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.
3. When it comes to income loss, if you didn’t report it on your taxes, you can’t recover it in Court. Many small business people don’t report all of their income to Revenue Canada. Who can blame them? They don’t want to pay tax on that income. But at law, if you don’t report it, then you cannot recover it as a loss in Court. Example: You operate a restaurant and a large part of the business is CASH. The restaurant you own nets you a profit of $60,000/year. But, you only report to Revenue Canada that you net $20,000/year from the restaurant business. Ever since your car accident, the restaurant cannot operate at all. You want to recoup the full value of your $60,000/year loss. In Court, a Judge can only award the on the sums you have reported, namely the $20,000/year loss instead of the $60,000/year loss. Many taxi cab drivers, tradesmen, restauranteurs, waiters, waitresses, salon workers, artists, or others in businesses who see a lot of cash face this dilemma.
4. The law of set offs is nasty for accident victims. Any money you receive from any source needs to be accounted for and in many situations may be used as a credit to the insurer. Money received in Income Replacement Benefits, CPP Benefits, Pension, WSIB, EI etc. all needs to be accounted for when quantifying your personal injury damages. The rule of thumb is that pecuniary damages are not allowed to put the accident victim in a better financial position post accident then they were pre-accident.
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