MISTAKE #1 - Failing to seek or follow medical advice. In every personal injury claim the main evidence relied on by the other side in assessing the claim is the information contained in the medical documentation. As a result, if you fail to seek medical treatment immediately or shortly after the accident, fail to follow advice received from your doctor, miss medical appointments or fail to continue seeing your doctor on a regular basis, without good reason, you will significantly jeopardize the value of your claim.

MISTAKE #2 - Failing to keep valuable evidence. Opposing parties and the courts are not usually prepared to rely 100% on a claimant’s recollection of events. Accordingly, if you fail to keep valuable information such as: receipts from expenses incurred, names and contact information of witnesses, photographs of injuries (where visible), and notes about the accident and your symptoms, you will be less successful than claimants who do.

MISTAKE #3 - Losing your temper. Insurance adjusters, doctors, therapists, lawyers, judges and juries are all human. Therefore, the easiest way to achieve a good result is by maintaining a pleasant and positive attitude with everyone who has the ability to affect your claim. This does not mean you have to cooperate or agree with everything they say, but it does mean you should address disagreements with an open mind and in a professional manner. Claimants who lose their cool jeopardize their claim. There is no longer an interest by the recipient of the hostile behavior to assist or deal with them in a fair and reasonable manner.

MISTAKE #4 - Exaggerating the effects of your injuries. Claimants who unnecessarily whine and complain or exaggerate the effects of their injuries do themselves a huge disservice. While unquestionably, if you have been injured, you will be in pain, the above behavior makes you less believable, which in turn reduces the willingness of the opposing party to assist you. It is also very easy for opposing parties, doctors, therapists, lawyers, judges and juries to see beyond the statements made and appreciate when you are exaggerating the effects of your injuries. If your complaints cannot be reconciled with the medical evidence, your credibility will be jeopardized. Claimants who exaggerate will fair much worse than claimants who do not.

MISTAKE #5 - Providing false or misleading information with respect to previous or subsequent injuries. Claimants who provide false or misleading information about previous or subsequent injuries undermine their credibility. The best way to address these issues is head-on. In some cases, lawyers can argue that the current accident aggravated previous injuries or that the subsequent injuries would not have occurred but for the first. Alternatively, it may be possible to argue that the previous or subsequent injuries are different from the injuries suffered in the accident for which the claim is being made. Where an opposing party is successful in uncovering deceit, which can include silence, the reliability of any other information provided by the claimant will be significantly diminished.

MISTAKE #6 - Failing to provide a complete list of symptoms to your doctor. Often claimants sustain several injuries in an accident. Unfortunately, they often focus only on the more significant injuries leaving out symptoms that are critical for linking the development of future diagnoses to the accident. As a result, the court is left unable to conclude that a condition diagnosed at a later date was caused by the accident and therefore no compensation for that injury will follow. To avoid this risk, make sure your doctors and therapists aware of all your symptoms.

MISTAKE #7 - Engaging in questionable behaviour. If you are pursuing a personal injury claim you should consider yourself to be under a microscope from the date of the accident until the trial is complete. In some cases you may be placed under video surveillance. Any questionable behaviour demonstrated during this time will affect your credibility and be used against you. Bragging to your friends about your weekend drinking binge or posting questionable information or photos on your Facebook or Myspace page could also be damaging.

While the above list is not exhaustive, it covers some of the key areas where problems can arise.

Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

If you’ve been injured in an accident, one of the questions that will likely cross your mind is “what is my case worth?”  The following is a brief explanation of how the court arrives at an answer to this inevitable question. 

The purpose of compensation in personal injury claims is to put the injured person (the plaintiff in a court proceeding) back into the same position he or she would have been in if the accident had never happened.  As this is not possible, the court does the best it can by compensating the plaintiff financially. 

There are several different categories by which the court can award damages to accomplish this goal. The basic categories are summarized in the following paragraphs. If you have been seriously injured there are other categories that may apply to your case that are not discussed in this article.

Damages for Pain and Suffering (also known as non-pecuniary damages) are designed to compensate the plaintiff for the pain and suffering endured as a result of the accident.  The amount awarded for pain and suffering is determined by comparing the plaintiff’s injuries and effect of those injuries on the plaintiff’s life to similar cases.  As no two cases are identical, there is often a range of what can be awarded.

Damages for Past Wage Loss are designed to compensate the plaintiff for wages lost as a result of the accident from the date of the accident to trial or settlement.

Damages for Future Wage Loss (also known as Future Loss of Earning Capacity) are designed to compensate the plaintiff for money the plaintiff would have received in the future through work, business, or some other relationship, but will no longer receive as a result of the accident. 
Damages for Future Wage Loss are generally only awarded where the plaintiff can establish there is a real possibility that the loss would have occurred. Future Wage Loss is often one of the most difficult categories to assess, particularly where the plaintiff’s career path was uncertain at the time of the accident or the length or effect of the disability is uncertain.

Special Damages are awarded to compensate the plaintiff for all reasonable out-of-pocket expenses already paid for by the plaintiff as a result of the accident, other than legal expenses (i.e. medication, physiotherapy fees, massage therapy fees, transportation, medical equipment, etc.).

Damages for Future Cost of Care are awarded to compensate the plaintiff for reasonable future care costs. The plaintiff needs to establish that there is a real possibility that the care will be required and the care is medically justified before these damages will be awarded.

“In Trust” Claims are awarded to compensate friends and family who provide the plaintiff with assistance as a result of the plaintiff’s injuries that they would not ordinarily provide. The amount is based on the types of services provided and the length of time they were provided.

Damages for past and future Loss of Housekeeping Capacity are awarded to the plaintiff where he or she is unable to perform all or part of the housekeeping tasks that the plaintiff would normally have performed but can no longer do as a result of the accident. Damages for Loss of Housekeeping Capacity may be awarded as a separate item or as part of one or more of the categories already mentioned.

All of the above amounts are added together for a total, which may be reduced for various reasons.

One reason damages may be reduced is contributory negligence. If the plaintiff is found to be partially responsible for the accident the award will be reduced by the percentage the plaintiff is found to be at fault. For example, if the plaintiff is found to be 10% at fault the award will be reduced by 10%. If the plaintiff is found to be 100% at fault, no damages will be recoverable.

Other issues that commonly arise are pre-existing health conditions and other possible causes of injury. A defendant is only responsible to put the plaintiff back in the same position he or she would have been in but for the accident. As a result, if the plaintiff has a pre-existing health condition or a condition that occurred after the accident but was not caused by the accident, the defendant is not responsible for compensating the plaintiff for those injuries. Often times, the plaintiff may have a pre-existing health condition that is made worse by the accident. This may be due to a previous injury in the area or a disease. While the plaintiff will not be entitled to recover compensation for all problems caused by that injury or disease, the plaintiff will be able to recover an amount for the degree to which the accident made the situation worse.

In summary, determining the value of a personal injury case is not a simple matter. It is the subject of numerous text books and articles. However, hopefully the above information has provided you with some insight on how the value of an injury claim is determined.

Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Say the words “personal injury lawyer” to just about anyone and the phrase “ambulance chaser” will come to mind. Therefore it is no surprise that when people are involved in an accident they are apprehensive about contacting a lawyer. This article is designed to try and alleviate some of the fears in contacting a lawyer.

Probably the number one fear in contacting a lawyer is cost. However, most personal injury lawyers do not charge for the first appointment. Also, if a decision is made to hire the lawyer, most will agree to take the claim on contingency, which means the lawyer is paid a percentage of the money the lawyer recovers on the client’s behalf. The Legal Profession Act regulates the maximum percentages lawyers can charge in contingency fee arrangements.

Another fear is finding the right lawyer. Do not be afraid to shop for the right lawyer. Friends, co-workers and family are a good place to start. You can also check the yellow pages and the internet. Firms who offer personal injury services will usually indicate this directly in their advertisement. Websites for local law firms can often be found in the yellow pages or through online directories. If the firm has a website, it may be helpful to review the lawyers profiles to get a sense of the lawyers practice areas and experience.

Whenever possible, it is a good idea to meet with more than one lawyer. If you have been seriously injured, you will have a lengthy working relationship with your lawyer so it is very important that you feel comfortable with your lawyer. The lawyer will have to review personal documents (i.e. doctors records and employment files) and know everything about you before your case is done. Also, if the lawyer is part of a firm, you should confirm who will be handling your file. While having more than one lawyer work on your case can be beneficial, nothing is more disappointing to clients than thinking that they have retained a particular lawyer only to find out that their case is being handled primarily by someone else without their knowledge. If someone else will be primarily responsible, ask to meet that person as well.

If you have been in an accident, seeing a doctor should be your first priority. You should then schedule an appointment with a lawyer as soon as possible and, ideally, before speaking to anyone other than your doctors, about the accident. In the event of hospitalization or limited mobility, most personal injury lawyers will come to the client. Valuable evidence can be lost (i.e. skid marks, evidence of road conditions, clothing removed in emergency, debris, witnesses, etc.) if a person waits too long to consult a lawyer. In addition, there are limitation periods for commencing a claim. Generally speaking, a person has two years from the date of the accident to commence a claim, however there are some situations where the limitation periods are considerably shorter. If the limitation date is missed, the claim is lost.

Some people are also afraid of what should or shouldn’t be said to the lawyer. In order for a lawyer to properly do his or her job the lawyer needs complete, accurate and truthful information. Conversations between a lawyer and a client are privileged, which means that the information provided to the lawyer is confidential. No information should be held back. If you are not completely honest with the lawyer, including withholding information, it will only give the lawyer and you a false sense about your claim. Problems dealt with early on are much easier to address than when they pop up half way through the claim. In addition, information that may seem harmful can sometimes be beneficial. If the lawyer is hired, he or she will act as your filter and decide what information should be disclosed to the opposing party.

In some cases it may be that you are better off not hiring a lawyer but you are not likely going to know until you have talked to one. A good lawyer will let you know if they think you are better off to handle the matter on your own.

Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.