Question: I want to file a tort claim against the driver who rear-ended me on the highway in Ottawa. My friends are telling me that it's not worth it because I won't see $30,000 of it even if I win because of Ontario law. Is that true?
Answer: It is only true if you are awarded pain and suffering or general damages of $100,000 or less. The $30,000 is called the statutory "deductible" and only applies to the pain and suffering portion of the award. In a motor vehicle accident lawsuit, you may recover damages such as loss of income, out of pocket expenses, other damages not covered by your auto accident benefits, and pain and suffering. These damages can be divided into two types:
- pecuniary damages, and
- non-pecuniary damages.
Pecuniary damages, also called special damages, compensate an injured plaintiff for damages that can be measured, such as medical bills, lost wages, and other out of pocket expenses. Non-pecuniary damages, also known as pain and suffering or general damages, cannot be exactly calculated. These damages include pain and suffering for the past, present and future, as well as disfigurement, or loss of enjoyment of life. In order to determine non-pecuniary damages, various factors will be assessed such as:
- the person's age,
- the nature and extent of the injury,
- long-term prognosis for the pain, and
- lifestyle changes after the accident.
Per Ontario's Insurance Act, pain and suffering awards are subject to a deductible of $30,000 if the award is $100,000 or less. In other words, if you are awarded $40,000 in pain and suffering damages, the deductible applies. $30,000 will be deducted from $40,000, and you are left with $10,000. If you are awarded $30,000 in pain and suffering damages, then you will be left with $0. Even if you are awarded $100,000 in pain and suffering damages, the deductible still applies and you will receive $70,000. If you are awarded $100,001, then the deductible does not apply and you will receive the entire amount of the award. The fact that the statutory deductible applies does not mean that it will not be "worth it" to file a lawsuit. As explained above, there are other damages an injured plaintiff may receive. If a plaintiff is disabled and cannot return to work for several months, he may recover these lost wages and any future lost wages. Because pain and suffering is different for everyone, it is important that an injured plaintiff consults a personal injury lawyer who can make sure that all the factors which prove pain and suffering are presented in the lawsuit to receive maximum recovery. Call the car accident lawyers at Bergeron Clifford to schedule a FREE consultation. 1-866-384-5886