When you are first injured and considering pursuing an injury claim, often the biggest thought in your mind is how much your claim could be worth. Pursuing injury claims can be a complicated and drawn-out process, so a value analysis is critical to ensure the time, money, and effort involved in pursuing a claim will be worth it in the end. There are several factors to consider. In particular, it is important to consider the amount of compensation that you may be eligible for, factors that may reduce the value due to your own action or inaction, and the ability of a personal injury lawyer to add value.
This article addresses factors to consider affecting a general injury claim. For information specific to a car accident claims, please see this post.
What compensation can I receive for my injury claim?
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
- The cause of the injury
- 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
Calculating your Injury Claim
After considering those factors, you will then need to place the various impacts into categories, called “heads of damage.” Damages are essentially the quantification of the harm caused by the incident. 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 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. If the injury is persistently troubling, you may fall into the range found in Smith v Stubbert.
- Past and Future Wage Loss: quantification of the income you have lost because of time you have taken off work or reduced hours following the incident and moving into the foreseeable future.
- Future Medical Care Costs: quantification of the medical care costs you are expected to incur addressing injuries from your personal injury.
- Valuable Services: quantification of the cost of hiring someone to perform household tasks you are no longer able to perform as a result of your injuries. Check out our blog post on valuable services here.
- Quantum Meruit: quantification of 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 injury claim
Were you partially at fault for the injury?
Contributory negligence is a defence that can be raised by the defendant. If you, the claimant, were a contributing cause of your own loss, then the damages that arose from your injury are partially your responsibility. This means you cannot recover the entirety of your loss from the defendant since you are responsible for paying some of your damages. 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 on recovering losses, but it may reduce what you end up receiving.
Some examples of actions that could be considered contributory negligence are walking or running recklessly before a slip & fall, or putting yourself in the way of harm.
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. This essentially imposes a duty to seek treatment after your injury. 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.
Can an injury lawyer add value?
Most often, a 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 needs 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 $5,000 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.
For more information on whether or not a lawyer will add value to your claim can be found in Jeff Mitchell’s books. Get your free copy of those resources here.
If you would like to speak to a lawyer about the value and strength of your 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.