A serious injury can affect every part of your life: your health, work, and financial stability. When pursuing a personal injury claim, one of the first questions many people ask is: How much is my claim worth?
The answer is not straightforward because the value of your claim is not guaranteed. To understand how the courts determine compensation value, you’ll first need to understand key aspects of the legal process. In this post, we’ll guide you through every stage, from understanding how value is determined to what happens when a claim is settled.
Personal Injury Claim Value Determination
If you’re wondering, “Why is there no fixed ‘average payout’ for a personal injury claim in Canada?” It’s because each claim is unique, and value is determined by various factors, including:
- Severity of Injuries: These could range from temporary or minor injuries to permanent or catastrophic injuries, such as brain or spinal cord damage.
- Quality of Life Impact: The ability to work, move and live independently is affected, whether slightly or severely.
- Financial Burden: Out-of-pocket expenses, such as medical expenses or costs for property damages, can quickly accumulate following an accident.
Injury Type and Severity
No two injuries are the same. This aspect of compensation determination looks at the significance of the location and impairment to function due to the injury, and its seriousness.
- Minor injuries: Sprains, mid burns, lacerations or bruises.
- Long-term injuries: Severe fractures, whiplash, concussions or internal organ damage.
- Permanent damages: Chronic pain, scarring or disfigurement, amputation, and hearing or vision loss.
Medical Expenses and Future Care
Certain injuries require increased amounts of immediate and ongoing medical care compared to others. Just like no two injuries are the exact same, neither are treatment plans. This aspect of compensation determines immediate care requirements, and those that may be needed down the road:
- Extended care (e.g. mobility support or hiring a caregiver).
- Frequent medical appointments.
- Financial compensation and potential training for those unable to work.
Earning Capacity and Financial Impact
After an accident, if you are unable to work because of your injury, you may be entitled to compensation in the amount that you would have otherwise been able to earn in that time. If your injury will impact your future earning potential, your compensation will also reflect that amount.
Medical documents are vital, as they outline the timeframe for treatment, and medical professional notes can highlight recovery time before the potential to return to work.
Special Considerations
For self-employed workers or those not working at the time of their injury, there are special considerations to take into account. These individuals often lack a traditional pay stub to support a case for lost hours, and will need to gather other documents, such as:
- Bank records or proof of income, and your financial health.
- Tax returns to view historical earnings in establishing an accurate average.
- Missed opportunities. Communication with potential clients that demonstrates how your injuries prevented you from performing your job duties.
How Insurance Companies and Courts Determine Personal Injury Claim Value
Insurance companies often focus only on quantifiable damages and aim to minimize payouts. On the other hand, courts consider the full impact on your life. Personal injury lawyers play a key role in both scenarios. They are capable of negotiating with insurance companies to validate your claim and presenting critical evidence to courts to secure fair compensation.
At Bergeron Clifford, our lawyers understand the impact an injury can have on your life, and we take the care to ensure your claim is taken seriously by insurance companies.
Types of Damages in a Personal Injury Settlement
There are two types of damages in a personal injury settlement:
General Damages
General damages are intangible costs. These are subjective and may require expert medical testimonies to strengthen validity. These damages can be categorized as:
- Emotional distress and loss of enjoyment of life.
- Psychological injuries such as PTSD, insomnia or depression.
- Pain and suffering, which can impact capabilities and cause damage long after a visible injury has healed.
Note: As of 2024, the maximum amount of general damages you can be awarded in Ontario is capped at $455,271.
Special Damages
Special damages are tangible costs that have a direct monetary value, such as the following:
- Medical Bills: This includes prescription medication, therapy, and rehabilitation.
- Lost Work Hours: If you are unable to work for a period of time due to your injury, compensation can cover lost wages for that period.
- Out-of-Pocket Expenses: Additional costs resulting from the injury may include transportation to appointments, hiring a caregiver or housekeeper, and repair or replacement of a vehicle.
Note: Unlike general damages, there is no “cap” for special damages.
Liability and Contributory Negligence
Determining liability is a crucial factor in assessing compensation potential. If the accident was caused by contributory negligence, there is a chance that overall compensation and any settlements would be reduced.
For example, we can examine Crocker v. Sundance. In this case, the plaintiff sued for injuries they sustained at a tubing competition. However, it was found that the plaintiff was voluntarily intoxicated during their time there, and as a result, was found to have accounted for 25% of contributory negligence. That 25% reduced the plaintiff’s payout as he was proven to be partially liable for his own injuries.
Insurance Policy Limits
Sometimes an insurance policy cannot cover the full amount of your losses if the at-fault individual’s insurance has a policy limit. If the settlement amount exceeds the policy amount, it is known as missing compensatory damages. In these cases, your lawyer may pursue additional avenues for securing fair compensation above and beyond the policy limit.
How to Claim Missing Compensatory Damages?
If a defendant is unable to pay off the remaining debts after exceeding their policy limits, the defendant becomes “judgment-proof”. The plaintiff either accepts that the remaining debt is unrecoverable, or, with the help of an experienced personal injury lawyer, can shift their focus to alternative collection methods, such as:
- Garnish the defendant’s future wages.
- If the defendant seeks to acquire property, the plaintiff could place a lien on the property (registering a legal claim).
- Claim with the underinsured motorist (UIM) coverage to collect the difference.
Documentation and Evidence to Strengthen an Injury Claim
When you’ve been injured due to someone else’s negligence, it’s common to want to get the most out of a personal injury settlement. To do so, you must collect as much evidence and medical documentation as you can. At Bergeron Clifford, our lawyers help clients gather and preserve the evidence that makes the difference in securing fair compensation. This evidence includes:
- Detailed Records: Medical records and expert testimony help support higher compensation.
- Information on the Incident: Photos, receipts or witness statements.
- Tracked Symptoms: Record ongoing symptoms and their daily impact, particularly for non-monetary damages.
Settlement vs. Trial in Personal Injury Claims
Most cases settle outside of litigation, during the mediation or negotiation phase with the insurer of the at-fault party. Settlements have their advantages in that they’re faster, more predictable and often less stressful, as they don’t require going to court.
In some cases, a trial can result in higher compensation, but it also carries a higher risk. That’s because the case could be lost when presented to a judge or jury. Trails can also take years to bring to court, which ultimately delays compensation payouts.
At our firm, our lawyers prepare every case for trial. That means we go above and beyond what is needed to ensure our clients have the best chances of securing fair compensation, either from a settlement or court decision.
The Role of a Personal Injury Lawyer
Having a personal injury lawyer by your side is invaluable when pursuing a case for fair compensation. That’s because:
- Lawyers negotiate strategically with insurance companies to validate your claim.
- A lawyer can prepare for every stage of the legal process, including mediation, negotiation, arbitration and litigation.
- Your lawyer will provide advocacy and support to facilitate your recovery and future.
Moving Forward with Confidence
Every personal injury claim is unique, and countless factors shape how compensation is determined. Whether the damages are minor or severe, or you need help navigating insurance companies or finding documentation, an experienced personal injury lawyer in your corner can offer you the support and reassurance you need.
No one should face an injury claim alone. With Bergeron Clifford by your side, you’ll have experienced trial lawyers who know how to maximize your settlement while supporting your recovery. Contact us today to start your path forward.
