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Why “Doing Fine” is not good for a successful car accident case in Ontario

The greater your injuries, the greater the value of your personal injury case.

The same applies in the opposite.

The less severe your injuries, the less value your personal injury case will have.

It’s always good to have a healthy and high quality of life and a lower value personal injury case; as opposed to the other way around. Nobody wants a poor quality of life. Money is not a substitute for happiness or for having the inability to manage daily tasks.

At some point in your personal injury case, an insurance adjuster, lawyer for the insurance company, or even a Judge might ask a Plaintiff how they are doing, or how they are feeling.

People have a tendency to respond that they are “doing fine“. Think about that for a moment. When a friend, family member, or work colleague asks you how you are doing, the tendency is not to open up and share all of your problems (because that would be really weird). Instead, more often than not, we tend to reply that we are “doing fine”.

There is nothing wrong in your everyday life to offer the canned answer that one is “doing fine“. But the thing is, litigation is not normal life. Everything which you say is generally documented. Your statements could be documented by a Court Reporter, or noted by a family doctor, or by an insurer. What a Plaintiff says matters, and is taken down verbatim. The Plaintiff is not afforded the benefit of the doubt. Once a Plaintiff says that they are “doing fine“, the insurer in particular will take them at their word that things are well and that no further treatment or benefits are required.

In litigation, it’s expected that when a Plaintiff is asked how they are doing, that a truly injured Plaintiff will open their hearts and speak ad nauseum about their pains, problems and damages stemming as a direct result of the subject accident. Again, this is very weird because very few people are trained to do that sort of thing; and this is not how normal conversations play out. But legal questioning is not a forum for normal conversation. When a Plaintiff is involved in personal injury litigation, their lives could not be further from normal even if they tried.

Is it normal to have your every word judged?Brian-Goldfinger-03-200x300

Is it normal to be followed around by private investigators hired by an insurance company?

Is it normal to see hired gun doctors who have permission to review all of your medical records, even though you are technically not a medical patient?

Is it normal to have lawyers in your life for several years even though you have not been charged with any sort of criminal offence or you are not involved in some sort of bitter marital dispute?

Insurers, particularly in car accident case LOVE to hear that a Plaintiff is “doing fine”. You see, in a car accident case in Ontario, the rules as they relate to damages are NOT FAIR. Those rules skew completely in favour of wealthy insurance companies.

In order to have a claim for damages (tort claim for pain and suffering), the Plaintiff’s injuries need to meet a medico-legal threshold. This medico-legal threshold applies REGARDLESS of FAULT. That means that the Defendant could have been drinking and driving while high on drugs and it would not matter. The Defendant driver is still entitled to these protections regardless of their recklessness.

In order to sue for pain and suffering in a car accident case, a Plaintiff must establish that his/her injuries are deemed to be both “serious and permanent“. If the injuries are not found by a Judge to be both “serious and permanent”, then the case does not meet the threshold test and will not have any value for the general damages. If the case is for general damages alone (pain and suffering), the the Plaintiff gets NOTHING regardless of the degree of fault attributable to the Defendant. And it’s for these reasons that insurers and their lawyers LOVE to hear when a Plaintiff is doing fine. Some people run into the habit of answering a lot of questions with that answer; that they are “doing fine” or that “everything is fine“. When these answers arise, it makes the personal injury lawyer’s job that more difficult. There will be conflicting evidence from specialists which suggest that the Plaintiff is injured vs. the Plaintiff’s own evidence that s/he is “doing fine“.

This is not to suggest that it is bad to be “doing fine“. Nor is it to suggest that a Plaintiff should lie or embellish his/her condition for financial gain in their personal injury case. Those are terrible things to do. In fact, lying or embellishing one’s condition is probably the worst thing one can do for his/her case. Nobody likes a liar; and no Judge, Jury or insurer will want to give a liar compensation for their injuries. Your personal injury lawyer should be able to better handle a client who isn’t good at articulating his/her injuries. But what’s particularly difficult to do is to represent a client who has a habit of lying or exaggerating their injuries. Those sort of clients do not present well to a Judge, Jury or insurer.

So, what is an injured accident victim supposed to do when asked how they are doing? A Plaintiff must view each opportunity to share how they are doing with a doctor, specialist, lawyer or insurer as an opportunity to present their case as to why they deserve compensation. The answers do not need to be lengthy. They also don’t need to be particularly articulate, or even that specific. But the answers should not gloss over the fact that the Plaintiff is struggling after the accident and that things are a real struggle. Life is not fine. Life has changed significantly as a direct result of the car accident. This is the exact opposite of “doing fine“. One can be “doing bad” or really struggling. Those sort of concise answers will be more helpful to one’s personal injury case, particularly for car accident cases in Ontario where the threshold is difficult to meet.

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