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Hidden Barriers to Recovery to Personal Injury Cases in Ontario

Personal injury law should be simple.

Plaintiff sustains an injury in an accident (the damages component).

Defendant’s negligence caused the accident (the liability component)

Plaintiff’s injuries directly caused as a result of the Defendant’s negligence (the causation component).

Any personal injury case without all three of these components will fail. When you put it out in such easy to understand terms, it would seem that personal injury litigation is very straight forward.

But it’s not.

Insurer’s will challenge the Plaintiff’s position every way until Sunday. That’s their job. Insurance companies don’t gratuitously throw money at claims which they don’t believe have merit. And even claims which they believe have merit are viewed through a difference valuation lens than then injured accident victim and his/her personal injury lawyer. Translation: The injured Plaintiff will think that their case is worth a lot. The Defendant insurer will think the opposite. Getting parties to agree to a valuation of damages can be a tricky exercise.

Aside from the normal defense tactics of surveillance (both in person and online), defence medical examination, digging in to one’s pre-accident history and testing their credibility at each step; there are other barriers to a Plaintiff’s recovery which can be even more difficult to overcome than a tactful defence lawyer.

It’s those hidden barriers to recovery which we wish to examine in this week’s edition of the Toronto Injury Lawyer Blog Post.

The Delays of Getting to Trial

Recently Regional Senior Justice Peter Daley denounced the provincial government (past and present editions) for their failure to address the chronic delays and lack of funding for judges and court room space. He described that the Courthouse in Brampton “has now reached the breaking point“. Cases in Brampton are being routinely transferred to other jurisdictions to have their cases heard. People who file their cases in Brampton sometimes have their cases heard in Milton or Kitchener where there cases can be heard, instead of in Brampton. Justice Daley added that “the Ontario government past and present is either willfully blind to the erosion of trust … or it believes that spending on this courthouse will not result in more votes. Either way, the government’s inaction is unconscionable“. It’s not uncommon for lawyers in personal injury cases to have to wait 1-2 years from the date of filing a Trial Record to have a Pre-Trial date (not a trial) for a common personal injury case. Insurers use this delay to their advantage. Justice delayed is justice denied.

Secret Credit for Insurance Companies

All car accident cases in Ontario are subject to a deductible which currently stands at ​$37,983.33 according to the Financial Services Commission of Ontario website. 

This deductible will increase in 2019 with the cost of inflation.

Personal Injury Lawyers are NOT allowed to mention this deductible at trial. If so, a mistrial will likely be declared.

Referring to the deductible as a deductible is too kind and makes some members of the public scratch their head for lack of understanding of what a deductible is. Let’s call a spade a spade. The deductible is a SECRET CREDIT which benefits insurance companies. It’s a secret because no mention of the deductible is made to the jury during a car accident case in Ontario. It’s a credit because it presents the insurer for the at fault defendant a savings of $37,983.33 per case! That money vanishes in the thin air. How is it handled by insurers for tax purposes? Not sure. In any event, here’s an example of how the deductible aka the SECRET CREDIT works in a car accident trial in Ontario:

Jury awards injured accident victim $75,000 (which they think is a lot of money)

Judge then applies SECRET CREDIT deductible of $37,983.33 without telling the jury which leaves the Plaintiff with an award of just $37,016.67. The secret credit to the insurer of $37,983.33 surpassed the Plaintiff’s net post deductible recovery of $37,016.67 on a jury award of $75,000! That’s not fair, but that’s the law.

Here is a second example of the application of the SECRET CREDIT

Jury awards Plaintiff $45,000 (which they think is fair and reasonable award)

Judge applies the SECRET CREDIT deductible of $37,983.33 without telling the jury which leaves the Plaintiff with an award of just $7,016.67.0001r_Goldfinger-200x300

With the application of the SECRET CREDIT, the will of the jury in making its award cannot be realized. The law has taken the power of the jury out if the jury’s hands, and left it to the law which was tailored to suit the needs of the powerful insurance lobby.

Jurors don’t like hearing personal injury cases

That’s the cold hard truth. Unless the case involves a fatality, or a very unique set of facts on liability, jurors generally disengage after a few days of trial (can you spend 1 hour without checking for updates on your phone….). Modern personal injury litigation is long and complex, thereby necessitating more Court time.  It’s not uncommon for personal injury cases to last 3-6 weeks. Do you really think that a Juror who is not getting paid and missing work on account of sitting jury duty wants to hear about a Plaintiff complain about their neck, back and shoulder pain over a period of 4 weeks!?!? If the jury is disengaged, they won’t connect or empathize with the Plaintiff and the greater the chance their award will be lower. Insurers know this. This is why it’s an automatic reflex for defence lawyers to issue jury notices simultaneously with their Statement of Defence. Jurors will be irritated that they have to sit in Court listening to a personal injury case. If they are irritated that they are missing time from work, bored out of their minds, or disengaged, then the insurer has the advantage. Do you think a juror would rather be sitting in on a murder, rape or drug trial; or a chronic pain personal injury trial? You be the Judge. When law students and law clerks sit in on high profile criminal cases they describe them as interesting and cool. Yet when they sit in on a complicated personal injury trial, those comments are the polar opposite. Comments reign in like “I didn’t understand what was happening” are common place. This can happen too in a jury trial. Jurors can get lost in the medico legal jargon from experts and lawyers on both sides. When that happens, the case is lost.

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