What is Personal Injury Law?
Personal injury law is an area of litigation that specifically pertains to injuries a person has sustained as a result of another’s actions or negligence. Our primary personal injury practice is Plaintiff work. This means that our clients are the ones who suffer the injury and we file claims on their behalf.
The general rule in Canadian law is that a person can only claim for compensation to be returned back to the position they would have been in had the personal injury not occurred. In other words, a client can only claim for the injuries they sustained in the incident. You cannot make a claim for pre-existing medical issues. Nonetheless, a client can claim for ancillary compensation stemming from their injuries and the incident.
What If I Cannot Pay A Lawyer For My Personal Injury Matter?
After you contact us, a member of our team will contact the client. We will need to get some general information and then schedule a meeting. Based on that information we will determine whether there is a fee for the meeting. For the vast majority of personal injury matters we will not charge a fee for the meeting.
You may recall hearing law firms advertise on TV or radio saying, “we don’t get paid until you get paid.” This is a contingency fee. A contingency fee is when the lawyer deducts their fees from what they recover on the client’s behalf. This is either through settlement or a decision of the court. The amount of the contingency fee is based on a percentage of the total amount recovered. As such, when we refer to a contingency fee, we are referring to the amount of the percentage that will go to the lawyer for their fees.
How Much Is The Contingency Fee?
The amount of a contingency fee will vary between lawyers and between firms. Some firms may have a flat amount that they charge regardless of the steps needed to complete the matter. Other lawyers will charge a tiered contingency fee. This means that the amount of the contingency fee will increase based on identified triggers in the contingency fee agreement. This fee reflects the amount of work the lawyer is doing on the matter. The amount of our contingency fee reflects the amount of work we have to do.
What Is The Process For Making A Personal Injury Claim?
When we refer to filing a claim, we are referring to filing an originating court document to begin the litigation process or begin suing the Defendant(s). The term claim is often interchangeable with action, civil claim and statement of claim. The originating court documents are either one of the following:
- a Civil Claim – which is a claim in Small Claims Court of the Provincial Court of Alberta. Small claims can only includes matters up to $100,000.00; or
- a Statement of Claim – which is a claim in the Court of Kings Bench of Alberta.
Generally, a client has two years from the date their injury occurred to begin a court action. If they fail to file court documents within this time, then they may be unable to pursue the matter further.
Depending on the type and severity of injuries, personal injury lawyers will often wait until close to the two-year mark before filing a claim. Also, personal injury lawyers will not recommend settling a matter until the client is healed or substantially healed from their injuries. This is because the client is still susceptible to further injuries as a result of the ones they have. As such, personal injury lawyers will not recommend settling until the client is healed or substantially healed.
If, according to treatment providers, the client is healed or substantially healed before the two-year period, then we will often send the opposing party a settlement proposal, along with supporting documents. The hope is that we can settle the matter without filing court documents. If the other side does not want to enter into settlement discussions or if they will not come up to our minimum amount, then we proceed with filing a claim.
Claims in the Court of Kings Bench of Alberta
The vast majority of personal injury claims take place in the Court of Kings Bench of Alberta. As such, we will address the initial steps after filing a claim. The steps are:
- We file a Statement of Claim in the Court of King’s Bench
- The Claim is served on the Defendant.
- The Defendant has 20 days to file their response through a Statement of Defence.
- We are served with the Defendant’s Statement of Defence,
- We have a three-month deadline to serve the Plaintiff’s disclosure materials. These materials are in the form of an Affidavit of Records (“AOR”).
- The Defendant or their counsel are served with the Plaintiff’s AOR.
- The Defendant has a 2-month deadline for the Defendant to serve us with their AOR.
- The parties will schedule questioning
- During questioning, the Defendant’s counsel will question the Plaintiff. In contrast, the Plaintiff’s counsel will question the Defendant or, if the Defendant is a company, an informed representative.
- If the Defendant is not contesting liability, then it may only be the Defendant’s counsel questioning the Plaintiff.
What Can I Seek In A Claim?
In personal injury matters “damages” is the term that describes the compensation that a client should recover. The two heads of damages are General (or Non-Pecuniary) Damages and Special (or Pecuniary) Damages. General damages are those that pertain to items that cannot be quantified, such as pain and suffering. Special Damages pertain to quantifiable damages, such as loss of income, or out-of-pocket expenses.
General Damages are quantified based on the injuries a client has incurred as a result of the incident. A personal injury lawyer will research previous cases that have been decided by Canadian Courts to find decisions where the Plaintiff had similar injuries. In these cases, a judge will have determined an award for General Damages. As such, the personal injury lawyer will compare several cases to the clients’ injuries in order to establish how much the General Damages are likely to be.
Special Damages include past and future care, past and future housekeeping, past and future loss of income as well as any other economic losses resulting from out-of-pocket expenses related to the injuries.
Examples of Special Damages
When we refer to care we are referring to medical treatments like the following:
- massage and
- other types of medical treatments that the client may have to pay for out of pocket.
However, if the client is in a Motor Vehicle Accident (“MVA”), the client’s own insurance company will often cover necessary medical treatments.
Housekeeping pertains to the degree the client is not able to do regular household tasks. The client may be able to seek compensation due to this. Examples of housekeeping are the following:
- The client can no longer mow the lawn or vacuum their home as a result of their injuries.
- The client relies on their husband, children, friends or hired help have to do these tasks in their place.
Loss of income pertains to the loss of income from not being able to work. It can also include unpaid time off to attend appointments related to the injuries. Other out of pocket expenses can include paying for an Uber to attend appointments or parking fees and various other expenses that a client may incur as a result of their injuries.
When Should I Contact A Lawyer?
Although we will wait until the client is healed or substantially healed before trying to settle their claim, there are various benefits to retaining us at the outset. The biggest aspect is that we will ensure we have made note of any limitation’s deadlines. In addition, we can often recommend treatment providers. Further, depending on the type and degree of the client’s injuries, we can send the client for certain types of assessments (as may be applicable).
Should the client retain us right away, we can advise the client on what documents they will want to keep and what records to maintain. We will save records to the client’s file as they are provided, including any receipts for out-of-pocket expenses.
Furthermore, as we have knowledge pertaining to personal injury matters, we know what our clients’ insurance company or the opposing party’s insurance company may or may not be able to provide. As such, our clients are able to elicit the benefit of our knowledge to assist them. In the alternative, we can liaise with their insurance company or the opposing party’s insurance. This may be in regard to trying to obtain treatment or possibly an interim payment depending on the level of liability the defendant(s) accepts. Nonetheless, this is on a case-by-case basis.
We Can Help!
In any personal injury matter it is better to consult with a lawyer, regardless of how long it has been since the date the injuries occurred. Furthermore, insurance companies and corporations often respond better to lawyers rather than individuals.
If you have personal injury related questions, please contact our personal injury team through email or call us at 403-225-8810. We are happy to be of assistance.
Always be aware of your surroundings and stay safe.
This article is intended for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Please note that the law is constantly changing and while the article is current at the time it was posted, the law may have changes since. Readers should obtain specific legal advice in relation to the issues they are facing.