MOTOR VEHICLE COLLISIONS
The law is constantly changing. In Ontario we have seen numerous revisions to the law dealing with personal injury claims and accident benefits.
Firstly, victims of collisions should be aware that they potentially have two claims. The first relates to their own insurer for accident benefits. The second is a claim against the "at fault" driver for bodily injury - this is commonly referred to as a tort claim.
Accident Benefits
Under the current regime, which came into effect on October 1, 2003, it is very important to be aware that you must notify your own insurer of your claim within 7 days of the collision. Your insurer will then send you an Accident Benefits Package of forms to be completed and returned to them within 30 days. It is beneficial if you involve your lawyer in this process to be sure the forms are completed correctly. Many of the forms are quite general and give a wide range of access to your insurer to collect an unlimited amount of medical and other information. Less than 100% accuracy and honesty may destroy your claim entirely. A fundamental principle of the law of insurance was known as "uberrmae fidei" which is Latin for "utmost good faith". If you lie to your insurer, you may receive no benefit at all; no matter how valid the rest of your claim. If you lie to me and I find out, you will be asked to find another lawyer.
Moderately injured accident victims should be wary of the Pre-Approved Framework Treatment Plan as this can limit the amount of therapy you receive and benefits paid.
Additional information on accident benefits and auto insurance can be found on the website for the Financial Services Commission of Ontario.
Tort Claim
The new laws which came into effect on October 1, 2003, have doubled the statutory "deductible" for pain and pain and suffering/loss of enjoyment of life claims. If your collision occurred before October 1, 2003 your deductible is $15,000.00 and after that date the deductible is $30,000.00. This change will eliminate a lot of viable claims. That means that if a judge or jury were to assess your claim at having $30,000.00 value, you get nothing. Write your member of the Ontario Legislature about this inequity.
When people talk about tort claims you will hear the word "threshold". The threshold is two tier. Firstly, you must sustain: "a permanent serious impairment of an important physical, mental or psychological function". Once this is determined, your injuries must be assessed as being greater than the deductible or you cannot sue for pain.
There are also some very short limitations dealing with municipalities and the Government, so if your claim deals with either of these entities, you should consult a lawyer immediately to ensure your rights are protected.
It is not recommended that you give a statement to the tort insurer without a lawyer present. Again, you should be wary of blanket consent forms which give insurers unlimited access to your medical and other information.
As with any claim, take lots of photos of your injuries, your car and the accident scene and keep good records in a journal. Save and document your expenses, losses and trips to the doctor.
Slip and Fall Claims
Slip and fall claims can be difficult to prove and, if you give a statement, insist on receiving a copy as defense lawyers may refuse to produce it later. It is very important to report any incident to the management of the facility where the fall takes place, if inside a store/building etc. If the fall happens in a parking lot you should notify the owner immediately. It is also helpful to take photos of the area where you fell or draw a diagram to preserve the details that may be forgotten as time goes by. I also suggest that you write a detailed accounting of the incident including location, names and phone numbers of any employees or witnesses.
If the fall takes place on a City sidewalk it is critical to notify the City immediately as there is a 7 day limitation to give written notice to the clerk of the municipality of any fall due to non-repair of sidewalk etc. There are very strict limitations when dealing with municipalities and you should contact a lawyer as soon as possible to preserve your rights. It is also best to have a lawyer present when giving a statement to any insurer. Save your footwear as evidence that you were not wearing treadless stiletto heels. Talk to a friend or family member to have a witness to your sobriety and that you weren't overloaded with groceries or other goods as will be alleged by the defense lawyer later.
Defective Product Claims
Claims for injuries arising froma defective product must be of a serious nature and should not be based on what "could have" happened. You should notify the company, manufacturer and retailer of the defect immediately. Most manufacturers will want to examine the product themselves and will likely ask you to return the product to them for inspection. It is beneficial to photograph or videotape the product before returning it to the manufacturer or, better still, let the examination be done at your lawyer's office in order to preserve the evidence. A lawyer can assist you in assessing your damages and dealing with insurers. Be wary of signing blanket consent forms allowing unlimited access to your medical and other information.