Ask the Expert! Joshua Goldberg on Personal Injury Claims
As an experienced personal injury lawyer in Ontario, these are some of the questions I am asked most by my clients:
Can I make a claim if I’m at fault?
The short answer is: It depends. When it comes to car accidents, you may have an accident benefits claim through your own insurance company. Accident benefits are no-fault, meaning even if you are 100% responsible for the car accident, you can still make a claim. What you cannot claim if you are at fault is pain and suffering - that is something you typically sue the other driver for (assuming they’re at fault). However in some provinces, fault is not all or nothing: Courts apportion fault between parties. If you’re only 50% at fault, you’re entitled to that portion of your damages.
Can I reopen my personal injury case?
Generally speaking, no. However, there are some exceptions. If your lawyer settled your case for less than it’s worth, it may be possible. However these cases are generally more difficult to litigate successfully than the original personal injury case. Depending on the facts, you may be able to convince the insurer or the court to reopen your case, but it can be challenging to win.
How long does a case usually take?
It’s very difficult to answer with any specificity at the beginning of the case, but generally the average case takes between 1.5 to 3 years. If it’s possible, your lawyer should take advantage of any early opportunities to settle, but because we’re mostly dealing with large insurance companies, it’s hard to predict exactly how each case will progress.
Can I sue if I trip or slip and fall, and injure myself?
The short answer is yes. The Occupiers Liability Act (and other legislation) in Ontario creates an obligation for people to make sure their property is safe for anyone who is expected to use it. So if you are at a grocery store, slip on some milk, and break your leg, you may have a case against the grocery store. Similarly, if you’re on the sidewalk and trip due to a broken city block, you may have a case against the city, too. I often see accidents inside and outside stores, on the sidewalk, in parking lots, in malls, and in apartment buildings. There are restrictions on notifying the owner of the property or the city, so it’s important to act as soon as you can. I recommend you consult a lawyer ASAP.
How do cases settle?
There are a few different ways cases settle. One is through informal negotiations. Once the client’s condition has stabilized enough to get a clear sense of what the case is worth, your lawyer can schedule a call to see if the insurance company wants to settle. Sometimes they say yes, and sometimes they say no, but it is possible to negotiate a settlement without having to even step into court. Opportunities to settle can also come up throughout the lawsuit. Once the lawsuit is started, we often schedule mediations, which is a more formal opportunity to try to settle the case with the help of a mediator (someone who specializes in helping parties settle cases). After a mediation and when trial is close to starting, the next step is pre-trial, which is like a mediation with a judge. If the case does not settle before trial, then the trial proceeds, and the case is settled in court. However, most personal injury cases in Ontario (something like 99%) settle before going to trial.
Do I need to do anything to help my case?
The only ‘homework’ I give clients is to take care of themselves and their injuries. It’s very important to get regular treatment, if possible. This includes seeing their family doctor and asking for referrals to any relevant specialists (like a neurologist, chronic pain specialist, or orthopedic surgeon). My firm does most of the heavy lifting for our clients so that they can focus on their recovery.