Published on:

The biggest factor in getting compensation for your personal injury case

Often people ask me what the biggest factor is for innocent accident victims to receive real financial compensation for their personal injury case. This is a wonderful question.

Sometimes, cases will be strong on damages, but weak on liability.

Other times cases will be strong on liability, but weak on damages.

And other times, cases can be strong on both liability and damages.

But regardless or whether or not the case is strong (or weak), on liability and damages; those factors and not the most important thing to getting a Plaintiff the compensation which s/he deserves.

The largest factor in whether or not a Plaintiff gets paid (or not) is insurance coverage. Simply put, if there is insurance coverage there; and there are no coverage issues; the Plaintiff has a strong chance of getting paid if their case succeeds on damages and liability. But, if there is no coverage there; the Plaintiff; in all likelihood, will not get paid regardless of whether or not their case is strong on liability and damages.

Insurance coverage is so important. At the end of the day, the Plaintiff cannot get blood from a stone. They won’t be able to collect on a judgment against a judgement proof defendant. That means if a Defendant has no insurance coverage and no assets, a Plaintiff won’t be able to recover a Judgment amount against them.

When I share this information with non-lawyers; they want to know what the legal recourse is. They want their pound of flesh so that the Defendant suffers. Most commonly, they ask if a Defendant can go to jail for being unable to satisfy a Judgment in a personal injury case. The short answer to that is “no“. It’s not a criminal offence to be poor, or to have insufficient assets to satisfy a civil Judgment. People go to jail for criminal acts (breaching the Criminal Code of Canada or for other regulatory offenses). Personal Injury cases are governed through our common laws and civil laws; not criminal laws. I have never heard of a Defendant going to jail for being unable to satisfy a personal injury judgment against them. Please don’t confuse this with a drunk driving offense, or another driving offense. A civil judgment in a personal injury case is separate from a conviction under the Highway Traffic Act, or the Criminal Code of Canada. While the personal injury case, and the driving offense arise from the same event; the personal injury case and the criminal or quasi-criminal charges and proceedings are completely separate actions.social-image-logo-og-300x300

A Plaintiff cannot garnish wages if there are no wages to garnish. A Plaintiff cannot place a lien on a property if the property is not in the name of the Defendant identified on the Judgment. Even if a Plaintiff can place a lien on a property owned by the Defendant; what good is that lien if there is no equity in the property; or if the property is already encumbranced by a number of judgment debtors? The Plaintiff will have to get in line behind the other creditors who are owed money. The equity only becomes live if/when the Defendant sells or transfers the property; which can be years, or decades down the road.

A Plaintiff cannot garnish ODSP or Ontario Works payments either. Those are protected at law from being touched by a Plaintiff who is owed money from a personal injury case. Those laws protecting money from being garnished do not specifically target Plaintiffs in personal injury cases. The only exceptions to those benefits being garnished apply in Family Law cases where spousal support payments and child support payments need to be made by a party who has failed to make payments.

Getting a Judgment against a Defendant can be a first step in any personal injury case. Where a Defendant does not defend the claim, getting the judgment can be the easiest and most straight forward part of the case; as strange as that might sound. The difficult part comes on the collection side where there is no insurance coverage. The collection side may prove to be a fruitless expedition where countless hours are lost for zero return on investment.

Here is an example of a case which resonates which many non-lawyers and helps them to better understand the ins and outs of collections in cases where there is no insurance:

An innocent person, who was in the wrong place at the wrong time gets attacked on the street by a dog who is off leash. The dog attack is completely unprovoked. The dog attack results in terrible injuries requiring stitches, sutures and rounds of plastic surgery. The scarring will last a life time. The police and animal control are able to identify the owner of the dog, and charge him. The dog owner is later convicted and fined (a quasi criminal offense). There are no questions as to liability. The Defendant dog owner is 100% responsible for the actions of their dog. The Plaintiff has serious objective injuries. The injuries are as a direct result of the dog attack (causation). All of the makings of a successful personal injury case are all there; except for the most important factor. Insurance! It turns out that the Defendant dog owner in this example is either:

a) Homeless

b) On ODSP or Ontario Works, living in a rooming house without rental insurance

c) Living a transient life in between apartments

d) Without any tangible assets or insurance whatsoever

Without any home owners insurance in place, or rental insurance, it would be highly doubtful that this Defendant would be able to satisfy a civil judgment in a personal injury case against them. A Plaintiff can invest tens of thousands of dollars of legal fees to explore the recovery of the judgment, without an guarantee of getting a return on their investment.

While cases can appear to be “winners“, based on liability and damages; there is no reasonable prospect of recovery in many cases unless there is insurance in place; or the parties know that the Defendant is independently wealthy with unencumbered assets. First rule of personal injury law: sue a party with deep pockets. Otherwise, the case, no matter how successful it may appear to be; won’t go anywhere.

 

Contact Information