Our Personal Injury lawyers oversee matters related to Motor Vehicle Accidents, Fatal Accidents, Brain Injury, Slip and Fall Claims, and Insurance Disputes.
Team Members: Bob Engels, Richard Der, Chau Nguyen, Jackie Bunn, Cindy Kellet, Betty Chan, Shauna Grenier

Frequently asked questions about Personal Injury Law:
How long do I have to make a claim?
How much can I be compensated?
Do I need a lawyer?
I've been in a motor vehicle accident. What do I do?
What is whiplash?
How long will it take before I am compensated?
How do I know if I have a claim?
How much will it cost?

How long do I have to make a claim?

For the overwhelming majority of personal injury claims, the deadline for initiating a legal action against the negligent party is two years from the date of the accident. This applies to car accidents, slip and fall accidents, and medical negligence claims.

For claims under insurance policies, (for example where an insurance company has refused to honour its obligations under a disability policy) then the deadline is set out in the terms of the policy. It is usually, but not always, one year from the date the claim was refused. Each policy must be reviewed on an individual basis, because there are many variations to this general time limit.

How much can I be compensated?

Each year, thousands of claims are brought by injured people. Only a small fraction of those ever make it to Court, but even that small fraction amounts to many each year in Alberta alone. In each of those cases, a Judge decides what a given set of injuries is "worth" in terms of compensation. Of course, the Court must take into account not only compensation for pain and suffering, but the cost of medical care, (both past and future), income loss, (both past and future), and the loss of ability to maintain your household, to name just a few of the more important items. Lawyers review those cases which involve comparable injuries, to come up with a range of awards that have been made in the past. After making any necessary adjustments for complicating factors, or inflation, your lawyer can arrive at an approximate amount as to what your injuries are worth.

Factors that come into play in assessing the claim are the degree to which the injury impedes one's leisure activities, one's ability to maintain one's household (i.e. cooking, cleaning, gardening, shopping, etc), and, of course, the effect it has on your ability to earn an income. Finally, Court costs may also impact upon the final amount of compensation received by the victim, and there are various mechanisms under the Rules of Court which may increase or decrease the amount of Court costs to which the victim is ultimately entitled. The general rule is that the longer Court proceedings take, the more Court costs the victim is entitled to.

Some factors that may reduce the amount to which the victim would otherwise be entitled are:

• Contributory negligence: if you are found to be partly responsible for your own injuries, the amount of compensation to which you would otherwise be entitled would be reduced. For example, if you are found to be 50% at fault for an accident, you may still make a claim for your injuries. However, the Court will determine the amount you would normally recover, and then reduce that amount by 50%, representing your share of the blame for the accident;
• Pre-existing conditions: this means any relevant medical condition from which the victim was suffering at the time of accident or injury. For example, if someone already had chronic back pain prior to the accident, then the at-fault driver can only be held responsible for the aggravation of those symptoms, not for the original symptoms themselves. Pre-existing symptoms can easily be verified through access to medical records;
• Intervening causes: A common example of an intervening cause is where a victim returns to work after an accident, perhaps prematurely. If an injury results at work, then the at-fault driver may try to blame the work accident as the true cause of the victim's problems;
• Failure to seek proper medical treatment: There is a legal obligation imposed upon a victim to seek appropriate medical care (legal term: "mitigation of damages"). The victim must take all reasonable steps to speed his or her own recovery, and to speed his or her return to work. If the victim fails to follow medical advice or does not seek appropriate treatment, he or she may be held responsible for prolonging his own recovery;
• Inadequate connection: sometimes people feel that any ache or pain they suffer following an accident entitles them to additional compensation. Unfortunately, sometimes it is difficult or impossible to prove that these problems were, in fact, caused by the accident. For example, arthritic pain may simply be part of the aging process, and is very common in older individuals, whether or not they have been involved in an accident. If it can be shown through medical evidence that the pain from which the victim suffers may be caused by the arthritis as opposed to injuries resulting from the accident, then the victim may not be able to recover any compensation for at least that part of his or her symptoms.
  
  What is obvious from the above is that no two claims are exactly alike. It is therefore foolish, and perhaps dangerous, to rely on information from second-hand sources in determining what a claim might be worth. The only prudent way to obtain a proper assessment of the value of your claim is to speak to a lawyer experienced in personal injury matters.

Do I need a lawyer?

There are very few occasions where one is required to have a lawyer. The decision to retain a lawyer is really, with one quite important exception, not that much different than deciding whether to hire a plumber or electrician or do the work yourself. The law can be complicated, but so can rewiring your renovation project.

The exception relates to the fact that claims for injuries and damages are claims against someone and are thus adversarial in nature. Most often, the other party will be represented, initially, by an insurance adjuster, a person who is employed by the insurance company. Their job is to protect the insurance company by saving that company as much money as possible. They are professionals. They deal with claims like yours every day. That is why the adjuster gets paid by the insurance company. The interests of the adjuster are diametrically opposed to yours and because of the years of experience the adjuster brings, the playing field simply is not level.

The role of the lawyer is to level the playing field and even possibly tilt it in your favour. The role of the lawyer is also to bring expertise and experience in building and negotiating your case so that you receive fair value for your claim.

I've been in a motor vehicle accident. What do I do?

If you have been involved in a motor vehicle accident and if it appears that the accident is at least partially the fault of someone else (even the driver of a vehicle in which you are a passenger), there are a few things that should be done.

• If anyone is injured or if the vehicle damage appears to be over $1000, you should phone the police as soon as possible and have them attend the accident scene.
• If no one is injured or the value of the damage appears minor, the police will not attend the scene. One should attend a police station as soon as reasonably possible to report the accident. The police will require a written statement from anyone directly involved in the accident and may request a statement from anyone who is simply a witness to the accident.
• Obtain as much information as possible from the driver/owner of the at fault vehicle. As a minimum you should obtain: name, phone, address, insurance information including policy number, registration information, drivers license number and license plate number. Do not admit liability (even partial) to the other driver or any witnesses.
• Obtain the names, addresses and phone numbers of any witnesses to the accident.
• If injured in the accident, even slightly, attend for medical treatment at your first opportunity; it can be important that there be an early record of medical attendance following an accident. Be sure to tell your doctor all symptoms that you feel; leave nothing out even if, at the time, it seems insignificant.
• If you were hurt in the accident, contact your insurance company (or the insurance company for the vehicle in which you were a passenger). This insurance company will have obligations to you. They will send you forms to fill out so that you can make a claim for reimbursement of medical expenses and for wage indemnity benefits if you qualify.
• Try to obtain photographs of the accident scene and the damage to the vehicles.
• Contact a lawyer who is familiar with accident and injury claims.

What is whiplash?

Whiplash normally occurs when there is a sudden movement of the head, backwards, forwards or sideways. When such movement occurs it can lead to tearing of muscles, ligaments, and other soft tissues surrounding the spine and head. When these soft tissues around the neck get stretched and irritated, it normally results in pain and a reduction of the range in motion in the neck. The most common incidence of whiplash occurs when riding in a car that is struck from behind, throwing the head backwards and forwards at an often high rate of speed.

The most common symptoms of whiplash include: headache, neck pain, dizziness, blurred vision, shoulder and upper back pain, pain in the arms and hands, loss of mobility in the neck, numbness and tingling. Other symptoms common with whiplash include lower back pain, jaw pain and hip pain.

How long will it take before I am compensated?

Generally speaking, the time frame is different for each individual case. A case can conclude anywhere from six months to many years. The most important factor in determining the length of time your case will take is your recovery. The more serious your injuries, the longer it may take you to recover, and thus, the longer the claim will take to conclude. We will generally not enter into serious settlement negotiations on your behalf until your injuries have resolved or until they have levelled off to a point that you are comfortable with in terms of settling your claim.

Other factors that will govern the time frame for your claim which you cannot control are as follows:

• Liability: If there is no dispute over liability, meaning the insurance company will payout the claim, the ball is back in your court as to when your case will be completed. However, if there is a dispute over liability, your case will likely go to examination for discovery and possibly trial. If this occurs, your time frame may be several years.
• Damages: When you are ready, we will assess your claim based upon the evidence accumulated and, on your instruction, will provide a proposal to the insurance company. If the insurance company's assessment of your damages is reasonably close to our assessment, settlement will normally occur with some further settlement negotiations. However, if there is a wide disparity between the parties as to the assessment of your damages, it may require extensive negotion and litigation to resolve your claim.

How do I know if I have a claim?

If you receive injuries as a result of someone else's negligence, you may have a claim against that individual (and, indirectly, their insurance company, if they are insured) for the injuries that you receive. Examples of situations where these kind of injuries could occur are slip and fall accidents, products liability cases, etc.

By far the most common kind of situation where you can become injured as a result of someone's else's negligence is the motor vehicle accident. If you are injured in a motor vehicle accident, you will have a claim for damages against any driver who was at least partially at fault for the accident. You can make this claim whether you are the driver or the passenger in your vehicle. If the accident was your own fault, you cannot make a claim for personal injury damages against your own insurance company, although they are still obligated to provide you with "no-fault" benefits known as Section B benefits.

If you are a passenger in a vehicle that is at fault for a collision and you are injured, you can sue the driver of your vehicle for injuries that you suffer as a result of the accident. You can also sue the driver of the other vehicle if they were at least partially responsible for the accident.

In order to determine the benefit of engaging the services of a lawyer in pursuing your claim for damages, your injuries must be more than trivial in nature. You may also have a claim for loss of income, loss of housekeeping ability, future medical care, etc.

If you are partially at fault for the accident, you can still make a claim for personal injury damages. However, you must be aware that your claim may be reduced by the percentage of fault that has been attributed to you. For example, if it has been determined that you and the other driver are equally at fault for the accident and that you are entitled to receive $10,000.00, you would only receive $5,000.00 in settlement of your claim.

It can also happen that you are injured through another driver's negligence, but that person does not have insurance coverage. You can still make a claim for personal injury damages though a department of the government called the Alberta Motor vehicle Accident Claims Fund. Your lawyer can negotiate with the Fund on your behalf in much the same fashion that they would with an insurance company.

Dealing with vehicle damage. If you have collision coverage on your vehicle, you must report all vehicle damage to your insurer as soon as possible. Your insurer will expect you to get at least two estimates of the cost to repair the vehicle damage. The insurance company has the option to give you the depreciated value of your vehicle, if the costs of repairs would be more than the value of the vehicle.

If you do not have collision for your vehicle and the other driver was at fault for the accident, you can make a claim for your vehicle damage through the other driver's insurance company. This insurer will also require two estimates of the cost to repair the vehicle damage, and you should contact them as soon as possible after the accident.

If the other driver was at fault but has no collision coverage, the Alberta Accident Claims Fund will no longer pay for vehicle damage. You may have to pay to have your vehicle repaired and seek reimbursement from the at-fault driver. If you are at fault for an accident and you do not have collision coverage for your vehicle, you will be responsible for the costs of repairing your vehicle.

How much will it cost?

Lawyer's fees arising from a personal injury claim can be dealt with in one of two ways - on an hourly basis or on a contingency basis.

Paying on an hourly basis means simply what it says - your lawyer will keep track of the time that he or she has spent on the file and will charge you the hourly rate for that time. This requires an up-front retainer and the lawyer will deduct fees from the retainer until this amount is gone. You will then have to provide a further retainer. However, some claims settle relatively quickly and some may take several years to settle. It is therefore impossible to say how much a claim will cost on an hourly basis.

The most popular method of retaining a lawyer in this kind of litigation is by way of a contingency arrangement. What this means to you is that you do not pay for any of the legal fees up front. Your lawyer will be compensated by taking a portion of the proceeds when the claim eventually settles. If the claim does not result in a settlement, your lawyer will not be entitled to any legal fees (although you may still be responsible for the expenses outlined below). Most people cannot afford the up-front costs of pursuing a legal action, and a contingency arrangement gives them the opportunity to do so.

There are other expenses associated with a personal injury file that are not related to legal fees. These expenses are called disbursements, and they are incurred for such things as: photocopying, filing of documents, faxing, obtaining medical or other expert reports, investigators' reports, etc. In a contingency arrangement, your lawyer usually assumes payment for these expenses as the file goes along. However, you are ultimately responsible for these expenses, although they are usually recovered from the insurance company with your damage award at the time of settlement.