Assessing your Personal Injury Claim

Most personal injury claims are settled without trial. Sometimes, a case proceeds to trial because there's a contentious issue about liability (who is at fault), or because the insurer does not believe the Plaintiff's claims of injury. In general, however, with a little hard work, some compromise, and perhaps a mediation, common ground can be found.

When a case settles, it's almost always because both sides have assessed the claim fully, and put their position in writing, for consideration. The process usually starts with the claimant (Plaintiff) making a proposal that addresses all the losses and damages. Counsel is in the best position to do this after some medical evidence has been gathered (usually, medical legal reports are obtained from treating doctors) and after the economic loss has been quantified.

It's customary to put the assessment in writing, and to send that to the insurance company. Most often, such an assessment will consist of several key components:

1. non pecuniary damages: this is compensation for "pain and suffering" and is a figure that's usually easily estimated by counsel. Generally speaking, damages for whiplash type injuries (no broken bones, with eventual recovery) range from a few thousand dollars to $50,000 or more, in extreme cases. Where the Plaintiff has suffered serious and debilitating injuries, loss of a limb, permanent impairment, or brain damage, the range can be more than $100,000. Counsel will know the likely quantum from case law and experience;
2. past economic loss: typically, this damage claim is a figure to compensate the plaintiff for pre-trial work and wages lost while convalescing. It may be a simple "hourly wage" calculation, or a more complex assessment of lost opportunities and forgone chances, missed during recovery;
3. impairment of future earnings claims: these claims involve an assessment of losses which may occur in the future, as a result of injuries occasioned in the collision. Loss under this head of damage need not be proven with perfection (a task that would most often be impossible)---instead, the assessment is conducted on a global basis, using well defined legal criteria and "tests" that assist in finding a range that fairly compensates for the expected loss. For a young person with a bright future and a serious impairment, these damages can be very substantial, but even in lesser cases, the loss can be quite significant even if not immediately obvious;
4. costs of future care: If the plaintiff will incur expenses, in the future, treating the condition that remains, or is in need of help around the home, special equipment, or has other pending costs, these are compensable;
5. special damages: this is compensation for "out-of-pocket" expenditures incurred by the Plaintiff "pre-trial". These often include Physiotherapy and Chiropractic fees, travel expenses, medication costs, and other equipment or care;
6. costs: this is an amount of money which is paid by the Defendant (usually an insurance company) to the Plaintiff to partially compensate for some of the costs incurred by the Plaintiff in bringing the suit. This amount is not the same as legal fees (it's usually 20% to 40% of the actual legal expense), and is determined according to a schedule set out in the Supreme Court Rules. Clients pay no fee (or professional charge) in relation to recovering costs;
7. disbursements: this is reimbursement for expenses incurred in the prosecution of the case. Usually, the lawyer representing the Plaintiff will have incurred costs (for medical reports, and expert evidence) which the lawyer will have paid for. When the case is settled, these costs are paid back as disbursements.

When a case is close to settlement, the lawyer will make an assessment of these main types of damage claims (not an exhaustive list), and will present the proposal to the client for consideration. Then, once the assessment has been reviewed and edited and is finally satisfactory, it will be sent to the insurance company.

Few insurers pay exactly what's sought at the outset, but many are settlement oriented, and after negotiating, will compensate for a proper claim that's carefully presented. Before the matter is settled, the client must know exactly what the final "net" product is---and the lawyer will need to calculate what the client will recover after all legal fees, disbursements, expenses, and tax. Only then can the client provide proper instructions to counsel about settlement.