Every injury case is different. That’s because every person is different; every accident is different, every injury is different; and everyone’s pre and POST accident health is different.
But, there are many similarities to personal injury cases.
For starters, all car accidents will involve some sort of motor vehicle. Liability; the legal term to describe whose fault is the accident will be examined. The severity of the injuries will be examined. And, the cause of those injuries (causation) will be examined. The concept of damages will also have to be examined.
In order for lawyers, judges and juries to get answers to the above noted topics, they will all ask very similar questions to get the information they need to assess your case.
In this respect, many lawyers can predict and prepare our clients for the questions their clients will be asked during the course of their personal injury case.
And, it’s for those very same reasons that we here at the Toronto Injury Lawyer Blog will now provide you with a list of commonly asked questions of accident victims during the course of their case. We’ve picked some pretty obvious ones, and some not so obvious ones that you would never soon guess.
1. The basics: Tell me your name, address, date of birth, marital status and how long you’ve been living at that address and in Canada.
It’s a good idea to confirm the person’s identity to make sure that they’re asking questions of the right person. Ever seen a discovery by a lawyer who thought they were examining one person who was really another. I have and it’s very amusing.
The rationale behind finding out how long you’ve been living in Canada for, or whether or not you’re a resident or not is very simple. If you’re going to be deported, or have immigration problems, then a Defendant can bring a motion for security for costs under Rule 56 of the Rules of Civil Procedure which states:
RULE 56 SECURITY FOR COSTS
56.01 (1) The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that,
(a) the plaintiff or applicant is ordinarily resident outside Ontario;
DECLARATION OF PLAINTIFF’S OR APPLICANT’S PLACE OF RESIDENCE
56.02 The lawyer for the plaintiff or applicant shall, forthwith on receipt of a demand in writing from any person who has been served with the originating process, declare in writing whether the plaintiff or applicant is ordinarily resident in Ontario and, where the lawyer fails to respond to the demand, the court may order that the action or application be stayed or dismissed.
The effect of a successful security for costs motion is that a Plaintiff will be ordered to pay money in to Court. If the Plaintiff fails to do so, then the action may get dismissed for breach of a Court Order. It’s an excellent tool by the Defendant insurer to defeat a claim based on a technicality, and NOT on the merits of the claim.
2. Is your house a bungalow, apartment, or a multi level home? Where is the washing machine or how many bathrooms are in the home? Is there hardwood flooring or carpeting throughout the home? All of these questions seem rather odd. What does it matter to a Defendant insurance company the construction of my home and the location of an accident victim’s washing machine? This all has to go to your ability to do housekeeping and home maintenance. It also shows your ability, or lack there of, to navigate around your own home. If a doctor’s note says that you cannot walk up and down the stairs, yet you indicate at discovery or at trial that you have no problems getting up and down the stairs to go to the bedroom, or use the basement laundry machine, then a credibility flag has been exposed. Why all of the questions about carpeting vs. hardwood flooring? Again, this goes to vaccuming, housekeeping and home maintance. Carpets need to be vaccummed. Hard Wood floors need to be swept.
3. Do you have a Facebook Account or Twitter Account? Now, why on earth would a lawyer want to know if a Plaintiff maintains a Facebook Account or any other social media account. It’s quite simple. Ontario Courts have stated that the content on Facebook Accounts can be RELEVANT to a personal injury action. Therefore, a Plaintiff may have an obligation to preserve said content which can be later exposed at trial. If you tweet or post pictures from the accident or your injuries, then that content will certainly be relevant to your case and needs to be preserved and likely produced to the Defendant.
4. What is your highest level of education? Where did you work prior to the car accident? How long were you working at that job? All of these questions are relevant towards establishing a past income loss, future income loss, and loss of competitive advantage claim in the workplace. If your highest level of education is Grade 10, and you were on disability prior to the car accident, then your past income loss is NIL. But, if you were a teacher before the car accident, and you weren’t able to return to work as a teacher on account of the car accident, these questions and your earnings will help establish your income loss claim. We just don’t make up numbers when it comes to such determinations. They’re based on your based income, and based on a mathematical formula.
5. On a pain scale of 1-10, how would you rate your pain? This question is very common for all personal injury claims. Lawyers can quickly tell who the exaggerators are if all of their answers at 10/10, and that the pain in constant, doesn’t fluctuate, doesn’t get better with sleep, rest or medication. This is not to say that pain cannot be 10/10.But, for pain to be 10/10, 24hours a day, and 7 days a week for the past 3 years or so is highly unlikely. The very nature of pain is that it fluctuates. Sometimes it’s very high, sometimes it lowers from that peak with rest, sleep or medication. Other times that pain gets worse with movement, cold or wet weather, lack of rest, stress etc. The lawyer for the Defendant insurer will then cross reference your answers with any of your doctors records which may say “pain is getting better” or “feeling alright today“, or even with video surveillance showing you moving freely without any visible pain symptoms. This evidence can be very damaging to a Plaintiff’s case, and persuasive to a Judge and Jury.
6. Describe your typical daily routine after the subject accident. This question gives the Defence lawyer and insurer a snap shot in to how you lead your daily life. A person who is injured with low activity levels typically won’t be leaving their house and running errands non-stop. If you’re claiming $1,000,000 in damages for pain and suffering, yet your typical day involves running 10km every morning, followed by making food and getting 3 kids ready to go to school, followed by going to work from 9-5, followed by making dinner for your 3 children, followed by putting them all to sleep, followed by playing in a recreational volleyball league such that NO ROUTINE in your post accident life is different than your PRE-ACCIDENT life. That doesn’t give the impression of a seriously injured accident victim now does it? Where is the person’s spouse in this situation? Perhaps that scenario paints the picture of a super productive single parent.
7. Have you applied for CPP Disability, or are you receiving money from any sources? The insurer wants to know this in case there are any set offs they are entitled to for your income loss claim. There are a variety of income sources which the insurance lawyers are seeking which include bur aren’t limited to: Car Accident Benefits such as Income Replacement Benefits, Non-Earner Benefits, ODSP Benefits, WSIB Benefits, Long Term Disability Benefits, Canada Pension Plan Disability Benefits, Pension Benefits etc. If the insurer is entitled to an off-set or a deduction, you will quickly hear about it from them or their army of accountants who are hired specifically to find these set off to save the insurer money. Sounds not fair? Perhaps. But, think about it. You shouldn’t be entitled to “double dip” or be in a better financial position POST ACCIDENT, then PRE ACCIDENT. Let’s say you had a monthly income of $1,250/month before the car accident. And now after the car accident with the IRB, CPP, and LTD you are receiving $2,000 (which can’t happen but for argument sake let’s say it is happening), this is an example of being better off POST ACCIDENT.
Enough law talk? Sure. Congrats to Toronto’s professional basketball team for setting a franchise record for wins before the All Star Break. I’m very impressed. But, I’m NOT impressed with their coaching as of late. I think that the team fails to adjust properly, while other teams are constantly adjusting to them, and figuring them out. I believe that the Coach needs to show a bit more faith in their young 7ft centre and let him play in the 4th quarter. I also feel that Mr. JJ needs to get off the bench. He will be a factor come playoff time as he presents a match up problem for anyone guarding him. He also plays some great defence, and can guard multiple positions. #asset.