Personal Injury and Occupiers Liability
“Personal injury lawyer” means more than just motor vehicle cases and ambulance chasing lawyers. Our service encompasses everything from dog bites, infliction of psychological and emotional suffering, bar brawls, slip and falls, and product liability cases. Occupier’s Liability refers to the obligation for a person who is responsible for a property to make sure that the premise they allow others to enter onto is safe from perils. This applies to a landlords, store owners, property managers, and employers. While many people may think of a slip and fall in a super market where they failed to put up a “slippery when wet” sign, other examples of cases that fall in this category include toxic mold and asbestos exposure cases.
Personal injury lawyers can help you with six (6) heads of damages you can claim for.
The first is for your pain and suffering, and intangible injuries. This is often called non-pecuniary damages or “non-pecs”. They are non-pecuniary in the sense that you cannot exactly calculate them and judges use a variety of factors to determine how much money would compensate you for the pain you’ve experienced and loss of enjoyment of life. A young outgoing athletic person who becomes a quadriplegic will receive more than a person who is a couch potato and has back pain for four months before subsiding forever.
The second is loss of earning capacity, both past and future. Unless you are independently wealthy, your ability to work is your largest capital asset. Loss of past earning capacity may be as simple as looking at how many days you had to take off work. This approach may be appropriate for simple cases where the extent of the injury is not significant. However you do not have to be limited to your earnings, and this approach is not applicable for those that were not working while injured – such as students. While it is often called past wage loss – the real test is loss of your capacity in the past to earn work. If you can demonstrate that you had opportunities to obtain more remunerative employment, or work overtime, then you are entitled to be compensated for that.
The loss of future earning capacity is often the largest award if there is an injury that significantly impacts your ability to make a living and you have many years left before you will retire. A 25% reduction in your earning potential as a 30 year old will likely be worth hundreds of thousands of dollars. As a result this is the most hotly contested award by insurance companies. It is typical for insurance companies to argue that your injuries are not permanent and that you could find comparable employment in another field. Vocational experts are often engaged to provide expert evidence as to the scope of your workplace limitations caused by the accident and how this impacts your employability and earning potential.
Third is cost of the cost of care – both past and future. Expenses for health care that you paid for prior to settling your case or proceeding through trial are sometimes also referred to as “specials”. This is just a legal term that means the amount of expense is exactly known. If you had to pay $1,600 for an orthopedic mattress to alleviate back pain then you are entitled to $1,600 (plus pre-judgment interest) – not a penny less and not a penny more. Future cost of care is awarded when you will continue to need health services and products in order to manage the injury that you sustained. An injury does not have to be severe in order to be permanent. Sometimes massage therapy once a month is required – and although the cost may be minimal each time, over the course of the rest of your life it can be substantial.
Fourth is loss of housekeeping capacity. The law recognizes that housekeeping services are valuable and are compensable, similar to loss of earning capacity claims. These claims are often challenged by insurance companies due to the relatively private nature of housekeeping work. Unlike employment, where your days off can be verified by payroll, your inability to do housekeeping work will largely only be corroborated by yourself and other family members.
Fifth are in trust claims. This is legal speak for recognizing the value that friends and family provide in caring for you while injured, and perhaps also performing housekeeping services. To some extent it may be sought of as the amount of money you morally owe you friends and family if you had to pay them to provide the care that you received.
And last are tax gross-ups and management fees. The law recognizes that if an award is sufficiently large and is intended to replace lost income over many years then the only way that it can be effectively managed and cared for is with a professional – such as a financial advisor. However financial advisors usually charge a fee based upon your net asset value – in Canada these fees hover around 2%. You are accordingly entitled to have your financial award receive a bump up to account for the cost of a financial advisor, as well as get a tax gross-up so that you receive the same post-tax dollars as the Court intended. The government always gets their slice of the pie, but we aim to make ICBC pay for it.
Personal injury claims have a lot of moving parts to them. The first hurdle you need to overcome is to prove that the other party was negligent – this is known as proving liability. Right after any personal injury event it is important to corroborate how the accident occurred. Take videos of the scene, make detailed notes so you can refresh your memory later, and if possible obtain the names of witnesses and use your smart phone to record a video with their observations.
Afterwards, the immediate focus should be on our recovery. It is not atypical for personal injury cases to take years because the symptoms take years to resolve, or to get to the point where your prognosis won’t change. During this time it is important to collect documents that are helpful to your case – such as employment records, receipts for the cost of health care services and medication.
It is also imperative to document the day-to-day impact of your injury. A year and a half from today you will not remember if your injury caused you to avoid going to a concert or event, or you were unable to spend as much time running around with your kids. A “pain journal” is highly recommended – so long as it a contemporaneous recording which means taken at the same time and not weeks later.
We also recommend that you turn off all social media. Insurance companies generally enjoy searching for videos or photographs of a Plaintiff to undermine the extent of their injury.
It is also important to contact our office early in order to ensure that we take the necessary steps to advance your case. Most people think that you have a two year limitation period – however this is incorrect. There are many important exceptions that shorten your limitation period. For instance, claims against City’s and municipalities require a particular form of notice which may be as short as 2 months. There are also certain other actions that need to be done promptly if you wish to activate your no-fault benefits (part 7s) with ICBC, or if you are hit by an unidentified motorist.
We help injured parties every step of the way – from identifying and tracking witnesses and records in the possession of third parties (i.e. CCTV footage) to determine liability, to recommending treatment providers, obtaining expert reports, and advancing your case all the way through trial. Although that is a concise summary – there are a lot of steps that need to occur in order for you to get the compensation that the law recognizes you are entitled to.
Many people are surprised how document intensive personal injury cases are. Every treatment provider you see forms an important part of determining your diagnosis, prognosis, and what amount should be awarded in respect of your pain and suffering, and what your future care needs are. It is not unusual in a personal injury action to see a half dozen treatment providers and physicians in order to be able to have an accurate portrait of the extent of the injury.
If you have been denied treatment by your insurance company, or had your claim denied outright we also fight for insurance coverage.
When you sign up with us we take care of everything except the actual treatment and recovery – that is something only you can do. While you are still recovering we monitor your progress with your treatment providers, such as physiotherapist, acupuncturist, and massage therapist as well as any diagnostic tests you obtain such as MRIs or X-Rays.
We also ensure that your immediate needs are met. If you are unable to work we work to find options for you – which may include your employer’s disability plan, worker’s compensation, applying for the CPP disability benefit, Employment Insurance, and as a worst case scenario, seeking litigation loans.
We will review and recommend treatment providers where necessary. We want you to be put into the hands of someone who is not only capable and competent at treating your injuries, but also someone whose evidence has been accepted by the Courts. It is a terrible experience for an injured person to see their treatment provider give incoherent or inconsistent evidence about the extent of your injuries as that may dramatically reduce your award.
After you are recovering well and have your immediate needs taken care of, we will touch base with you regularly throughout the entire life of your file to ensure that we capture the impact of your injury on various aspects of your life and that we put together the best possible evidence to support all the different heads of damage.
Depending on your preference, we may try to resolve your case early on. Clients have different motivations for settling early – some may have a business venture or investment opportunity that they want to pursue. Others do not want to spend many days before a Supreme Court judge at a proper trial. Some want to pass an early inheritance to their children or help them with the purchase of a house. Whatever the reason we will never pressure you to avoid settling and proceeding to trial if you do not want to.
While theoretically it is possible to do these cases on an hourly rate, the industry wide practice is to do them on a contingency basis. We charge a 1/3rd or 33.33% contingency for injuries that arise out of motor vehicle accidents. For non-motor vehicle related injuries and in particular injuries where the defendant may not have insurance coverage, we charge a 40% contingency fee.
Almost all personal injury cases get heard in Supreme Court and you will almost always be entitled to an award of costs if successful which will offset a sizeable portion of your legal fee. In exceptional circumstances, your entitlement to costs may actually exceed your legal fee.
Contact us either at (604) 259-6200 or using the form below for assistance with Personal Injury and Occupiers Liability
The foregoing provides legal information and does not constitute legal advice. As an analogy, legal information are equivalent to learning the rules of chess, and legal advice is the tactics and strategy that goes into winning a game. Lawyers are trained to give valuable advice that is specific to you after learning about the details of your case. Readers are cautioned that they will rarely achieve the best outcome for their case without actual advice. A consultation is often the best next step to take.