Toronto Injury Lawyer Blog
No personal injury case is ever the same.
Some may be similar; or may share similar characteristics. But, no two personal injury cases are never the same.
There are so many variables which can change a personal injury case. These variables are seemingly infinite. Here are a few which personal injury lawyers and Courts have to consider:
- The age of the Plaintiff. This impacts his/her future income calculation, future care, and life expectancy
- The way the accident happened
- The policy limits relating to the accident
- The availability of collateral benefits to a Plaintiff
- How much the Plaintiff was earning (or not), in the years before the accident
- The Plaintiff’s pre-accident and post accident health, along with what they did (or didn’t do) to get better
- How the Plaintiff, and/or Defendant presented at Examination for Discovery
- If any surveillance has been taken of the Plaintiff; and if so; what that surveillance showed, or didn’t show
- The status of a Plaintiff’s accident benefit case (where available)
- What the Defence Medical Reports say vs. what the Plaintiff’s expert reports say
- The information contained in the clinical notes and records
- Is the family doctor supportive (or not) to the Plaintiff’s case
- Are there any causation issues with respect to the accident related injuries
- Are the injuries subjective or objective. If the injuries are subjective, is the Plaintiff credible, believable and/or likeable
- Will the case be proceeding by way of Judge alone, or in front of a Jury
- Special considerations when it comes to liability (i.e. suing a government, municipality vs. suing a private citizen)
- In the case of a motor vehicle accident; are the threshold and deductible live issues for the case
And the list goes on and on.
It’s for these reasons that there’s no one size fits all approach to handling, or resolving a personal injury case. Each case is unique, and requires a multi faceted skill set from the personal injury lawyer in order to get his/her client the desired result. This is why it’s so important for a personal injury lawyer to have a varied set of tools in his/her skillset. Different cases will require different approaches. A common mistake which young lawyers and clients make is assuming that each case will play out in the exact same way. That statement could not be further from the truth. Simply because a case with similar facts has gone one way; does not mean that a similar case will go the same way.
One of the best illustrations of this concept of no two cases are alike is when it comes to insurance coverage.
Take two Plaintiffs, who are exactly the same in age, size, stature etc. They have the same pre-accident job, with the same pre-accident collateral benefits. The both get run over by a car which failed to stop at a stop sign. They both sustain the exact same injuries. They both receive identical hospital treatment, and it takes the exact same time for those injuries to plateau. Their recoveries are completely identical.
One case settles for $1,000,000; which is the maximum available under the insurance policy.
The other case settles for $200,000; which is the maximum available under the insurance policy in this alternate scenario.
What explains this $800,000 gap between Case #1 which settled for $1,000,000; and Case #2 which settled for $200,000. After all, they are identical Plaintiffs, who sustained identical injuries, and have identical pecuniary and non-pecuniary loses.
In Case #1, the Defendant driver carried a valid car insurance. The Defendant’s policy limits were $1,000,000.
In Case #2, the Defendant driver was driving illegally without car insurance. The Plaintiff had no other sources of car insurance from which to claim. As a result, the Plaintiff needed to make a claim through the Ontario Motor Vehicle Accident Claims Fund (“The Fund“), whereby the limits are set at just $200,000.
While it is certainly possible for the Plaintiff to attempt to recover the $800,000 shortfall against the Defendant driver personally, the odds of collecting that sum are unrealistic. Particularly where the Defendant is not a home owner (they rent), and is living off Ontario Works or ODSP.
Here is another case where coverage will make the difference. This time, in a dog bite/dog attack case.
Again, we have identical Plaintiffs who sustain identical injuries from the same dog in the same park, in alternate universes. Both Plaintiffs recover in the same fashion.
In Case #1, the Plaintiff is awarded $100,000 by a Judge at trial, and is able to collect on the Judgment because the dog owner had home owner insurance or tenant insurance. The insurer pays out on the Judgment and the Plaintiff gets the compensation which s/he deserves.
In Case #2, the Plaintiff is also awarded an identical judgment of $100,000 at trial. But the Defendant in that case was not a homeowner, nor did s/he have any tenant insurance. The tenant was a renter at a property which did not require that the tenant have any insurance whatsoever. The Plaintiff seeks to enforce the Judgment. But after a lengthy Judgment/Debtor Examination, it turns out that the Defendant has no assets, no job, no property, and is living off welfare. The prospect of recovering on the $100,000 is remote.
These coverage issues exist and pop up more frequently than you would imagine. This is why it’s important to have your own car insurance (in the event that you get hit by an uninsured driver, even if you’re a pedestrian or a cyclist). And we tell people that if they are going to get bit by a dog, to make sure that the dog has a wealthy insured owner 🙂
These little variances can make, or break, a successful personal injury case. They can spell the difference between a Plaintiff who actually gets real compensation for their injuries, vs. a Plaintiff who is awarded compensation for their injuries but who cannot collect upon the Judgment. While the Judgment is vindication that they were in the right; it does not necessarily translate to a Plaintiff collecting or receiving any compensation on the Judgment. It becomes an empty Judgment which only has sentimental value.
