Proving a Motor Vehicle Injury Claim

According to Transport Canada’s motor vehicle traffic collision statistics for 2013, there are well over 150,000 collisions reported every year in Canada. Further, the Ontario Road Safety Annual Report for 2013 tells us that approximately 42,000 of these accidents occurred in this province.  These collisions often result in injuries to drivers, passengers, cyclists and/or pedestrians, and sometimes injuries are fatal.

When an accident occurs, there is almost always a party at fault.  This generally means that a careless or a negligent action caused the accident.  Accident reports for Ontario overwhelmingly show that most accidents are preventable. In fact, the primary causes of car accidents continue to be impaired driving, driver inattention and speeding.

Whether or not a car accident can be attributed to another driver’s error, the injured person always has the option of filing a claim for statutory accident benefits against their own vehicle insurance policy, in order to seek compensation for any financial losses resulting from their injury.  When an accident was caused by a negligent or careless action, the injured person has another option as well, which involves filing a civil suit against the negligent party and their insurer.  

For consideration when you’re making an injury claim

If you were injured in a car accident and are considering making a claim for compensation for your losses, there are several actions that should be taken.

• Seek immediate medical attention even if you believe your injuries may be minor.  Injuries sometimes worsen over time or develop complications, and early treatment can minimize the risk of further injury. Also, proper medical assessment is vital evidence of your injury.
• Follow through on any treatment, including rest, recommended by your physician.
• Make an accident report to police.
• Report the accident to your own insurer as quickly as possible, whether or not you’re planning to file a lawsuit against the other driver. Your vehicle insurer requires notification of a claim within 7 days of your accident.  
• Save relevant documentation such as photographs taken at the scene of the accident, medical expenses and other disbursements arising from the injury, witness information, and a record of lost time at work and lost income.
• Contact an experienced car accident lawyer to find out about your best options for obtaining injury compensation.  A civil lawsuit must be filed within two years of becoming aware of the extent of your injuries, which is generally two years from the date of the accident.

Seeking Damages in a Civil Action against the 'at fault' Driver

Anyone who was seriously injured in an accident may file a civil suit to seek compensation for their injuries and corresponding losses. This compensation comes in the form of ‘damages’. Compensatory damages are financial compensation awarded to help return the injured person to the condition they were in before the accident, to as great an extent as possible  The common types of compensatory damages awarded in civil suits are special and general damages.  Special damages include compensation for economic losses, such as any loss of income, medical and rehabilitation expenses, loss of earning potential, damaged property, and so on. General damages include compensation for non-monetary losses such as pain and suffering and the loss of enjoyment in life that is associated with the effects of the injury.

There are several key factors that come into play when making a successful injury claim in a civil action against the ‘at fault’ party.  When you claim for damages against another person for causing your accident, and by extension, your injury and losses, you may be required to prove negligence if the other party disputes their fault in causing the incident.   In cases where the ‘at fault’ driver faces a traffic violation or criminal charge such as impaired driving, the issue of negligence may not be disputed. When a defendant driver admits liability, although a plaintiff may not be required to prove that the defendant was responsible for causing the accident, they may still need to prove that their injuries resulted from the incident.  In every claim, the claimant must also show that the amount of damages being sought is reasonable for the injuries and losses suffered.

In a minority of personal injury actions, the opposing parties may not be able to agree on a settlement through negotiation or arbitration. In such cases, the claim must be resolved in court.  If the defendant disputes their fault in causing the plaintiff’s injuries, the burden is on the plaintiff to prove negligence on the part of defendant. This generally involves demonstrating that the defendant driver did not take reasonable steps to operate their vehicle safely; that they failed to act like a reasonably prudent person would have done under the same circumstances; and finally, that their reckless or careless driving actions caused the accident.

A plaintiff must also provide evidence for the losses they incurred due to their injuries, which may entail both financial and psychological losses.  This will include evidence such as medical assessments and testimony, to prove the severity of injuries, expenses incurred, and the effects on the victim’s day-to-day life.  In many cases, there will be assessments and calculations presented to show projected income losses and/or future rehabilitation and attendant care expenses.  If an accident victim’s family members are making a claim for expenses, then they will be required to provide evidence for their losses, as well. Of course, the nature of the evidence for a plaintiff's losses will depend on the compensation being sought.  For anyone who was seriously injured and whose life is significantly impacted by their injuries, substantial evidence will be required to itemize expenses and project future losses, all of which will be considered in a fair valuation of damages.

Accident Benefits Claim under your Vehicle Insurance Policy

In addition to filing a civil action for damages against the negligent party, anyone who was injured in a motor vehicle accident can file for injury compensation from their vehicle insurance company.  In Ontario, this form of compensation is often referred to as ‘no fault’ insurance because it is available to everyone from their own insurer, whether or not they were responsible for causing the accident. The statutory accident benefits schedule (SABS) under Ontario’s Insurance Act defines the accident benefits available to everyone. Benefits include income replacement, medical and rehabilitation expenses, and attendant care expenses.  Each of these benefits is subject to a maximum amount, depending on the severity of one’s injuries.  After being notified of a claim for benefits, an insurer will require the claimant to submit an Application for Accident Benefits generally within 30 days, which includes medical documentation for their injuries.  

A Claim involving an Underinsured or Uninsured Driver

Ontario vehicle owners can opt for underinsured motorist liability coverage on their vehicle insurance policy.  In the event that serious injuries are caused by an underinsured driver, a claimant with this optional coverage can recover an amount from their own insurer if a negligent driver has insufficient insurance to cover the full amount of their damages.  For example, if the negligent party has a maximum of $200,000 of coverage on their vehicle insurance policy and the injured plaintiff seeks damages of $500,000, then their own insurer will be obliged to pay the $300,000 difference owing if full damages are awarded to the plaintiff.

If the ‘at fault’ driver is uninsured, then the injured party may seek an amount from their own insurer for all the damages incurred as a result of the accident, up to a maximum of $200,000.  This amount for uninsured motorist coverage is statutorily mandated by the Insurance Act of Ontario, so it is available to anyone who was injured by an uninsured driver.

Successfully filing and proving an injury claim can be a challenging process if an insurance company challenges the severity of your injuries or the amount of your loss. It is always to your benefit to consult with an experienced personal injury attorney if you are considering making a claim or if your insurer is disputing your case.  Your lawyer can explain the advantages and potential compensation available in a civil suit versus a claim against your vehicle insurance policy, so that you have the information you need to make the optimal choice, given your unique circumstances.

The Injury Lawyers of Ontario affiliates have a strong record of providing excellent representation and achieving favourable results for our clients.  Call us today for a frank assessment of your best legal options.