Plaintiffs in personal injury actions arising from motor vehicle accidents face an uphill battle in court, as there are five main ways in which the case is stacked against them from the get-go, Toronto personal injury lawyer Darryl Singer writes in Lawyers Weekly.
The first challenge, writes Singer, is the ‘statutory threshold,’ as merely being injured in an accident caused by someone else does not automatically entitle a person to sue for pain and suffering.
“The injuries must meet what is called the ‘threshold.’ The plaintiff must have suffered a ‘permanent serious impairment of an important physical, mental or psychological function.’ Most of my personal injury cases involve an argument over whether or not my client meets the threshold.”
Plaintiffs then face the threshold motion, writes Singer, as s. 267.5(15) of the Insurance Act allows the trial judge to determine the threshold question regardless of the jury’s determination and award.
“This gives the insurer two kicks of the can at the same trial. If I am able to persuade the jury that my client’s injuries entitle her to a significant award of general damages, which would appear to determine the threshold question, the judge can decide the question differently and strike the jury award.”
Third, a statutory deductible on general damages for pain and suffering, he writes, is also set out in s. 267.2 (1) of the Insurance Act.
Due to recent amendments to the Act, for all accidents which occur on or after August 1, the deductible is now $36,540 on all awards under $122,000, says Singer, with jury awards reduced by this amount.
“When a typical soft-tissue case is worth less than $50,000, it is easy to see how the deductible has such an impact. Moreover, the jury is not told about the deductible, which can cause juries to return what they feel is a generous verdict only to result in the plaintiff being shut out.”
Also, he adds, while the named defendant is the person whose vehicle is responsible for causing the accident, it is their insurance company who pays the lawyer and any damages award.
“The jury is not told that an insurer is the de facto defendant. Thus, jurors may seek to balance their desire to help my client with their empathy for the named defendant.”
Finally, the unsuccessful party in the trial is also responsible for paying a significant portion of the winning party’s legal costs, writes Singer — with costs awards commonly exceeding $100,000 for a typical personal injury jury trial.
“These five factors demonstrate how the system is stacked against innocent injured victims of motor vehicle accidents. One large insurer has been so successful in exploiting these inequities that many plaintiff lawyers now routinely refuse to take on clients where that particular insurer indemnifies the at-fault driver.
“The impact on access to civil justice is that a great many deserving plaintiffs cannot find representation, and many more who do are denied fair compensation for their injuries.”