Articles Posted in Damages

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Many people ask Brian Goldfinger what it takes to build a successful personal injury case. Is it having the best personal injury lawyer? (not that any personal injury lawyer can ever say that s/he is the best because that’s against the law). Is it having the best client? Is it having the best back end data retrieval software? Is it having the best rehab team working on your case? Is it having the best looking business cards to intimidate the insurance company into submission? Is it having the best doctors treat you? Is it having your personal injury lawyer commission the best medico-legal reports from the best experts?

The truth is that building the best personal injury case is much like building the best home. There is no such thing as the best home. There are great, well built homes. But everyone’s opinion of what the best home is; is entirely subjective. The best home is the place which you lay your head to rest and call home. Some homes are fancier than others. Some homes can do with more. But we all get by with what  we’ve got and we make the most of our situation.

A successful personal injury case is much like a well built home. A well built home requires a lot of advance planning, practical and sometimes unique design, quality materials, experienced and skilled labour.

A personal injury case requires a lot of advance planning, practical and sometimes unique design for the case; quality materials in the form of records/reports, along with experienced and skilled lawyers to optimize a superior result on behalf of the client.

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The purpose of this entry of the Toronto Injury Lawyer Blog is to focus on a rather long personal injury case called Davies v. The Corporation of the Municipality of Clarington.

This is the case about a Via Trail derailment on what should have been a routine trip from Toronto to Montreal on November 23, 1999.

100+ passengers claimed injuries by way of class action.

Liability was sorted out by way of class action by way of trial in 2007.

But what wasn’t sorted out was the quantification of damages for one injured passenger; Christopher Zuber. Injuries, causation and the quantification of damages was the focus of this trial.

Mr. Zuber’s personal injury case in its entirety lasted around 17 years.

The trial took around 26 weeks (approximately 107 days to complete). It is believed this was the longest single personal injury jury trial in Ontario Court history (but we have no real concrete stats on it).

Here are some comments from the Honourable Justice Edwards about this case which speak for themselves on what it takes to suceed in a personal injury case, along with the state of modern personal injury litigation in Ontario. These comments are worth noting for any personal injury lawyer, or for any member of the general public with an active personal injury case on the go in Ontario. The comments of the Honourable Justice Edwards are also important to understanding how personal injury cases work, and are assessed in Ontario. Keep in mind, these are direct quotes from the Judge in this decision.

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To structure, or not to structure? That is the question for the purpose of this entry in the Toronto Injury Lawyer Blog. Sometimes, whether to enter in to a structured settlement is not an option; rather a requirement. Other time, you may have a decision to structure or not.

WHAT IS A STRUCTURED SETTLEMENT?

A structured settlement is a negotiated financial arrangement whereby an injured accident victim agrees to accept a usually large lump sum of money in the form of a settlement from a personal injury claim. That lump sum is then placed in to an interest bearing financial instrument (called a structure) which gets paid out in periodic payments over a long period of time to the Plaintiff.

Instead of receiving one large lump sum at one time, the Plaintiff instead receives periodic payments (usually every month) set over a schedule which normally lasts a life time.

The monthly payments, administration and maintenance of the structure are not charged to the person receiving the structure, unless otherwise specified.

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In Ontario, if you win your case, a judge cannot award you a victory medal, a ticker tape celebratory parade, or a key to the City in your honour. The Judge also cannot order that the at fault party experience the same pain and suffering which you endure.

The only thing the Judge can do is award you compensation in the form of MONEY.  What you do with that money is up to you. So, if you want to take that money from your personal injury case and use it to get a permit and then have a celebratory parade, go right ahead.

It’s nothing personal, it’s busiess

The reality is that personal injury litigation is a serious business. It’s a business because there is money at stake.

That money doesn’t come from a small local charity or a mom and pop’s store/restaurant. In most cases, that money comes from a large, multi national insurance company with offices across Canada and other parts of the world. Most of these insurers trade publicly on stock exchanges world wide. They exist to earn a profit. The more money these insurers pay out in awards, the less money they get to report in profit for their share holders. Continue reading →

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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. Continue reading →

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Long Term Disability Plans are what they call in the insurance industry “living policies” or “living benefits“. You need to be alive in order to recover on going LTD Benefits.

In their most basic form, these LTD policies are there to protect an insured person in the event of serious disability which prevents that person from working at their own occupation, or at any gainful occupation.

If an insured person meets the test for disability, and they have filed all of the proper paper work, then in a perfect world; that person will receive long term disability benefits for the period for which they are disabled.

The amount of the monthly LTD benefit depends on your policy along with your pre-disability income. Some polices have a set monthly benefit amount like $1,000/month; regardless of income. Other policies base the monthly benefit amount on a percentage of your monthly pre-disability gross or net income, depending on the wording of your policy (ie 66.67% of your gross income averaged in the year before your disability).

All of these calculations sound simple enough. But have you ever read the fine print of these policies? Have you ever paid attention to how long some LTD policies can be?

The devil’s in the details, and the wording of these LTD policies can rise up and have a negative impact on your long term disability case.

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Personal Injury, Long Term Disability and Car Accident cases across Ontario are built upon EVIDENCE. Our legal system doesn’t play out in such a way as a Plaintiff makes a claim, yells a lot that they’re entitled to compensation, and then they get what they want. If Courts worked that way, those with the loudest voices would always win. In order for your case to succeed, you need evidence.

Evidence can’t be made up or fabricated. In order to be persuasive and carry weight, your evidence needs to be pure, legitimate, and not tampered with or altered.

Evidence comes in a lot of different forms. Evidence can be oral testimony from an examination for discovery. It can come from testimony at trial while a witness or party is on the stand. Oral evidence can come from parties to the litigation, witnesses to the action, lay persons/character witnesses, or experts.

Evidence can also come in the form of documentary evidence. Police reports, medical reports, video surveillance, 911 recordings, photos of injuries etc. All of these items are forms of evidence as well.

Cases are made and broken based on evidence. How much weight evidence is given depends on the Judge/Jury.

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When injured accident victims think about damages, they often think of those valuations in very linear terms; as if they’re on a straight line.

Broken knee? $100,000 plus $150,000 loss of income = $250,000

Fractured wrist? $50,000 plus $25,000 loss of income = $75,000

These are very simple mathematical equations. The problem is these equations are too simple and don’t take in to consideration the whole story.

What accident victims don’t know is that often insurer are entitled to credits or set offs when calculating damages to make sure that the Plaintiff is not over paid for their injuries.

There are many examples when an insurance company is entitled to a set off. What is a set off?

Essentially, it’s a credit in favour of the insurance company. Take the example of a person who was involved in a catastrophic car accident. Prior to the car accident, they were earning $40,000/year. They will never be able to work again on account of a traumatic brain injury.

They are receiving an income replacement benefit in the amount of $400/week from their accident benefit insurer. The total amount of income replacement benefits equal $20,800/year.

If the tort insurer pays 100% of the $40,000 income loss; then the accident victim ends up with $60,800/year ($40,000 + $20,800). That would mean that the accident victim is in a better income position post accident than pre-accident. While this is great to see; unfortunately, this is NOT how the law or the Insurance Act works. In this example, the tort insurer is entitled to a credit; commonly known as a “set off” to make sure this type of over payment doesn’t happen. That set off would be for $20,800 for the income replacement benefits already paid out. Therefore, in order to make the accident victim whole, the tort insurer will pay the difference, that being $40,000-$20,800 = $19,200.

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Happy Canada Day! It’s a time to celebrate our beautiful country, friends and family. For many, Canada Day will involve good food, good beverage, and participating in outdoor activities.

In the days following Canada Day, our law firm often gets a number of calls and inquiries regarding injuries which took place in the great outdoors during Canada Day celebrations. There is a common thread with these calls, which I would like to share with you in order to ensure that your holiday is a safe one. Because afterall, who wants their Canada Day celebration ruined on account of a serious injury or accident. This is the last thing you want over a long weekend.

So without further a due, here are Goldfinger Injury Lawyers’s top safety tips for the Canada Day holiday:

1. Drinking and Driving; Drugs and Driving and Texing and Driving is always a dumb decision. Don’t do it. But let me take this one step further in tip #2…

2. Alcohol, or Drugs and Any MOTORIZED equipment don’t mix either! Operating a chain saw, a scooter,an e-bike, a small engine boat, an ATV, a Sea-Do; you name it. If it’s motorized and you’ve been drinking or have taken a narcotic; it’s not a good mix. You would be amazed at the amount of weird fact pattern calls we get following summer long weekends involving operating some sort of motorized vehicle and drinking. Often, these vehicles aren’t insured, and are being operated where they shouldn’t be operated. Play it safe from the start so you don’t need a personal injury lawyer to figure out how an insurer is going to respond and perhaps pay out for such a claim. There is no magic pill to get your health back, and no amount of money; no matter how large will ever restore your health. People don’t often understand that concept. A million dollar, or two million dollar award, or even higher will NEVER restore an accident victim’s ability to walk.

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Our law firm had a record number of Long Term Disability Claims settle in the last quarter of 2014. In particular, the last month of 2014 was a mediation bonanza for our lawyers when it came resolving long term disability (LTD) disputes.

One of the things which we caution our clients on when it comes to settling LTD claims are the tax implications of the settlement.

Damages for pain and suffering are non taxable. Damages for past and future income loss are taxable. But these heads of damages apply to tort claims such as car accident and general negligence cases (slip and fall, dog bite, etc.)

But what happens for Long Term Disability Claims when it comes to tax implications for the settlement?

Look no further than the wording of your policy. I will be in there. I guarantee it!

Some policies state that benefits are taxable. This means less money in the client’s pocket because they have to pay tax on any amount recovered.

Other policies state that the benefits are NOT taxable. This is much better for the client because they don’t have to pay the tax man for any amount recovered in the case.

If you don’t know whether your LTD benefits are taxable or not, then just ask your insurance broker, union rep or even your employer who is funding the benefits. They will have an answer for you. You can also call the insurer who is underwriting the policy (Great West Life, SunLife, Manulife, Equitable Life, SSQ, RBC Insurance, Co-operators, Desjardins etc.) and ask an agent directly. They will have an answer for you as well.

Effective January 1, 2015, Revenue Canada introduced some important rule changes which impact the tax implications on any taxable LTD settlement. If you have an LTD claim before the Courts, it’s very important to understand these rule changes because they will likely impact on your settlement.
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