YOUR CLAIM

The basic principle is that the person who is at fault for your injuries has a legal obligation to compensate you, insofar as money can do this, for the pain, suffering and expense which you incur as a result of your accident.

Generally speaking, you are entitled to make a claim for the following items:

GENERAL DAMAGES FOR PAIN AND SUFFERING

In Canada, our Supreme Court has held that the maximum amount which can be claimed for pain and suffering is approximately $250,000.00. This is the maximum, or in other words, what a perfectly normal person who is now a quadriplegic can obtain for pain and suffering.

A person with a minor whiplash which resolves itself in 3 months could expect an award of approximately $3,000.00 to $8,000.00 depending on the circumstances. Awards will fall anywhere between these two extremes depending on the nature and severity of the injuries.

LOSS OF INCOME

If you took time off work as a result of the accident, you are entitled to make a claim for the wages you did not receive.

If, as a result of the accident, you are unable to continue working, you are entitled to make a claim for the income you would have earned for the rest of your working life. When you hear of the larger awards made in Canada, they generally incorporate a significant claim under this heading.

FUTURE CARE COSTS

These refer to the costs associated with providing care for you from the date of the accident until you no longer need these services. Typical items under this category include massage therapy, nursing aids, special mattresses or braces, and other similar items associated with personal care.

HOUSEKEEPING SERVICES

If you are no longer able to perform household chores, you are entitled to make a claim for this as well. Basically, this category refers to the costs associated with hiring a housekeeper or having another family member or friend maintain your home.

OUT-OF-POCKET EXPENSES

Typical items include prescription drugs, heating pads, ambulance charges, and other incidental items.

RETRAINING COSTS

If you are no longer able to pursue your chosen career, you are entitled to make a claim for the costs associated with pursuing an alternative career. Items under this category include rehabilitative counselling and tuition fees.

INTEREST

Under the terms of the Judgment Interest Act you are entitled to receive interest on your award from the date of the accident to the date of the award. Interest is awarded only in respect of items relating to past compensation. In other words, no award of interest is made in respect of future earnings or future care costs.

LEGAL COSTS

You are also entitled to make a claim for the legal costs associated with your case under the Alberta Rules of Court. Essentially, the rules provide for a tariff which compensates you in relation to each step you are required to take in bringing your claim to completion. Presently the Rules compensate you for approximately one half of your actual legal costs. You are also entitled to be reimbursed in full for disbursements incurred while pursuing your claim. These include items such as court filing fees, medical and other expert reports, photocopying, fax charges, etc. 

EVIDENCE GATHERING

An important part of every case is the gathering of evidence. A number of persons will be involved in this process, including you. As with any court case, it is the obligation of the plaintiff and their legal counsel to assemble the evidence which he or she will present. The quality of the evidence presented can greatly affect the outcome of a case.

Pictures of the accident scene should be taken as soon after the accident as possible. The very fact that an accident occurs at a particular intersection will sometimes lead the municipality to change the signage or install new traffic lights there. Two or three years down the road, when and if you have your trial, these factors may become critical in determining fault for the accident. The client normally attends to this task.

Witnesses to the accident should be interviewed while their recollections of the event are fresh. Their recollections should be set out in the form of a statement which is signed. This matter should be attended to by your legal counsel or an agent on his or her behalf. Your counsel will also obtain any witness statements given to the police, as well as the accident report.

While it is difficult to do, you should maintain a diary of your recovery progress. A simple note or two each week will suffice to record such things as headache intensity, headache frequency, muscle spasms, stiffness, and pain. The nature of the pain should also be described in terms of its severity and whether it is dull, throbbing, sharp, or otherwise. Medications taken, types of treatment, their frequency and whether they are assisting in your recovery should also be noted. These are all matters which are difficult to recall without notes if you have to testify at a trial two years from now.

You should also keep all of your receipts for medications, physiotherapy etc., as you are entitled to be reimbursed for these items.

As discussed below your doctor will also play a key role in collecting and reporting evidence. Your doctor's most critical observations concern the objective manifestations of your injuries. These are things such as tissue swelling, tenderness, muscle spasms, x-rays, and CT scans, all of which independently confirm the nature and severity of your injuries. You should be careful to point out to your doctor as many of these symptoms as possible, as these are factors on which judges place particular emphasis when assessing your claim.

THE ROLE OF YOUR DOCTOR

Your doctor will play a critical role in your case from beginning to end. He or she will be aware of your history, assess your injuries, prescribe treatments, provide medical-legal reports and may ultimately testify on your behalf.

It is important to see your doctor regularly so that he can keep an accurate record of your injuries and recovery process. The frequency of your visits is a matter to be determined between your doctor and yourself, but they should not be more than every 6 months.

When you visit your doctor he will make detailed notes of his observations as they relate to the examination. These notes will later form the basis of a medical-legal report which will ultimately determine the value of your claim.

Doctor's fees relating to preparing medical‑legal reports are not covered by Alberta Health Care. If you are successful in your claim, the insurance company will likely reimburse you for these costs.

You should follow all of your doctor's recommendations regarding other treatments he may suggest, such as physical or massage therapy. Insurance companies frequently point to the failure by patients to attend for these treatments as a reason for reducing the amount they pay on a claim.  Additionally, all treatments you submit to should be recommended or approved by your doctor. For example, you should not decide on your own to attend chiropractic or acupuncture treatments without first consulting your doctor.

UNINSURED DRIVERS / INADEQUATE COVERAGE

If the driver of the other vehicle is at fault, and either has no insurance or inadequate insurance coverage, you may be able to claim against your own policy.

OTHER EXPERTS

Depending on the type of accident and nature of your injuries, there are a number of other experts who may be required to assist you with your case.

If your injuries are specialized, you will likely require the services of a doctor practicing in a particular field of expertise. If there is an issue regarding fault for the accident, it may be necessary to involve an accident reconstruction expert to "reconstruct" how the accident occurred. If your continuing ability to work is in issue, you will require a report from an occupational therapist. If you have a claim relating to future care or income, it will be necessary to retain the services of an actuary to calculate the amount of these claims. Your lawyer will assist you in determining which experts will be of assistance to your case.

TIME LIMITS

There are certain time limits imposed on when you must make a claim. If these dates are missed your claim will in all likelihood expire. You should contact a lawyer as soon as possible after your accident to ensure this matter is dealt with. For most people there are two critical dates.

The first is the date on which you need to commence your action against the person at fault for damages relating to the injuries you suffered. This date is two years from the date of the accident.

The other limitation applies to what are called Section B benefits. These are the benefits your own insurance company will pay regardless of who is at fault. These include all reasonable expenses which your doctor believes are necessary for your treatment and rehabilitation, as well as a portion of your lost wages if you are not able to work after seven days. The limitation for this claim may be extended if any payments have been made.

If a municipality or other government agency is at fault then other shorter statutory limitation periods apply. You should consult with legal counsel regarding these time periods.

Lastly, your insurance company should be notified of the accident as soon as possible. Some insurance policies provide for time periods within which the insurance company must be notified of a claim.

LEGAL FEES

The basis of your lawyer's retainer should be firmly established before he or she begins representing you. The two most common fee arrangements associated with personal injury work are the contingency fee and fee for service agreements.

A contingency agreement basically provides that the lawyer will be paid on a percentage basis and that the fee will be based on the eventual amount recovered. Generally speaking, the percentage of the fee relates to the stage at which a claim is settled. For example, the fee will be lower if the matter can be resolved without having to go to trial.

The other method of paying for a lawyer's services is to pay him or her on an hourly basis for the work which is performed regardless of the amount of claim, if any, awarded.

Under either scenario the client typically pays for the disbursements incurred on the file such as court filing fees, medical reports, photocopying etc.

This document is intended to be used for information purposes only.  Due to the ever changing nature of law, you should consult with one of our lawyers if you have specific legal questions.

DUHAMEL MANNING FEEHAN WARRENDER GLASS LLP