This article addresses factors to consider affecting a car accident personal injury claim. For information regarding other types of injury claims, please see this post.
What car accident injuries can I be compensated for?
To get a good idea of the compensation that might be available to you, it is best to take a step back and consider all the ways your injury has affected you and those around you physically, mentally, and logistically. Factors to consider include:
- The nature and severity of your injury
- Who was at fault in the car accident
- What treatment you have received and will need in the future
- The impact that injury has on your ability to work
- The impact the injury has on your daily activities such as housework or hobbies
- The ways friends and family support you in your injury
How to calculate the value of your Car Accident Claim
After considering those factors, you will then need to place the effects into categories, called “heads of damage.” Damages are essentially the quantification of the harm caused by your injury. Damages are intended to compensate you such that you are put back into your original position had the injury not occurred. An injury of any kind can affect your life in all sorts of ways beyond the pain and discomfort from the injury itself.
Under these heads, the damage from the injury is quantified. This is done by referencing case law for precedent on what has been awarded in the past if no numbers are immediately applicable, and/or by calculation of your actual financial loss in those areas as a result of your injury.
There are certain heads of damage that apply to every claim, but sometimes, your injuries from the car accident will not ‘unlock’ certain types of compensation. For that reason, the heads of damage applicable to you will vary. A non-exclusive list of heads of damage to consider are:
General damages are awarded to provide compensation for pain, suffering and loss of enjoyment of the amenities of life which you have suffered and will foreseeably continue to suffer into the future. Quantifying this is not a perfect science because money can never hope to replace what you have lost. For car accidents claims in Nova Scotia, the Minor Injury Cap will apply to general damages and will limit your damages if your injuries are minor. Find more information on the Minor Injury Cap here. Alternatively, if the injury is persistently troubling, you may fall into the range found in Smith v Stubbert.
Past and Future Wage Loss
Past and future wage loss should be quantified if they have been lost or are expected to be lost because of the car accident. Be sure to also consider the potential for loss of income due to losses of promotions, overtime, or bonuses.
Future Medical Care Costs
Future medical care costs should be quantified to ensure that money is available to provide necessary car for accident related injuries. Common medical expenses include physiotherapy, chiropractic treatment, massage therapy, counselling, and home modifications.
Valuable services is a type of loss that considers the cost of hiring someone to perform household tasks you are no longer able to perform as a result of your car accident injuries. Check out our blog post on valuable services here.
This head of loss, called Quantum Meruit, considers the additional work friends and family put in to make up for the reduced capabilities of the injured person to perform work around the home. Check out our blog post on Quantum Meruit here.
This is a non-exclusive list, as there could be several other compensable losses caused by your injury, including out-of-pocket costs.
Factors that could reduce the value of your car accident claim
Nova Scotia Minor Injury Cap
If your MVA injury is determined to be minor, this could limit the amount you can recover under general damages. It will not affect your recovery under the other heads of damage. For more information on the Minor Injury Cap, and whether it could limit the value of your claim, check out this blog post.
Were you partially at fault for the injury or accident?
Contributory negligence is a defence that can be raised by the defendant in a car accident injury claim. If you, the claimant, were a contributing cause of your own loss, then the damages that arose from your injury are partially your own responsibility. This means you cannot recover the entirety of your loss from the defendant because he or she was not fully responsible for the loss. The amount you are responsible for paying will correspond to the percentage of fault that the court decides to attribute to you. This isn’t a complete bar to recovering losses, but it may reduce what you end up receiving.
Some examples of actions that are considered contributory negligence are not wearing a seatbelt when driving, or not wearing your helmet while cycling. If a collision occurs, you are considered partially at fault for your injuries, because they could have been prevented or reduced if you had taken the appropriate precautions.
Did you do everything you could to prevent further harm?
As an injury victim who is found not at fault, you won’t be responsible for the injury itself. However, you still have the duty to mitigate your harm after the fact. Mitigation means to ensure harm and damage remain at a minimum. Failure to mitigate means you may not be able to recover for the entire effects of your injury on your life if the court determines it would have been less severe if you had done or not done a certain activity. For example, if you are suffering, but did not seek out any treatment, this could indicate that your symptoms would have been less severe or less chronic if treatment was pursued. Therefore, you may not be able to recover the full value of your claim. Again, this isn’t a complete bar on recovering losses, but it may reduce what you end up receiving from your car accident injury claim.
Can a personal injury lawyer add value to your car accident claim?
Most often, a personal injury lawyer will help you to increase the value you recover from your claim, in order to best cover your losses. However, depending on the strength and value of your claim, this is not always the case. To add value, a personal injury lawyer must to be able to increase your total recovery so that your take-home amount after all fees are paid is greater than you would have settled for independently. So, for example, if you would have been able to independently negotiate a settlement of $5,000 for your injuries, a lawyer who charges a 25% contingency fee will need to be able to achieve a settlement greater than $7,000 in order to ensure the client will take home more than $5000 after all fees are paid. If the lawyer doesn’t believe they will be able to add value, then it may be worth considering pursuing a settlement on your own.
That being said, it is always a good idea to consult with a lawyer on the strength and value of your claim. Most personal injury lawyers will meet with you for an initial consultation free of charge. This is a great opportunity to consult with them on the value of your claim, and whether a lawyer will be able to add value. It is best to do this before attempting to settle on your own to ensure you are going in prepared and getting the best possible outcome.
NOVA Injury Law offers free consultation for all types of car accident claim. There is no risk or obligation to proceed with your claim following the consultation. You will leave the consultation knowing how to assess your car accident claim, whether a personal injury lawyer can add value to your claim, and whether Jeff Mitchell is the right lawyer for your case.
More information on whether or not a lawyer can add value to your claim can be found in Jeff Mitchell’s book on Car Accident Claims. Get your free copy here.
If you would like to speak to a lawyer about the value and strength of your MVA injury claim, do not hesitate to speak with a personal injury lawyer directly.
Jeff Mitchell is Principal Lawyer and Founder of NOVA Injury Law. Jeff has dedicated his practice to the area of personal injury, accident, and disability benefits law. Contact 1.800.262.8104 or [email protected] to arrange for a free case review today.