Injured in a car accident? Plan to sue? 7 things you should know

If you're ever hurt in a car crash and not deemed at fault, you may be entitled to sue the person who caused it. But how soon must you act? How much compensation can you expect? And if you win the case, how soon after will you receive your compensation? It depends on a few things.

A car accident is a terrible experience, made worse if you or a loved one is injured as a result. Along with the emotional distress and physical pain often accompanying such an event, the loss of income is another consequence. Although filing a lawsuit against the party responsible may compensate you for some or all of your losses, there are key things you must know before you do.

According to Paul Cahill, partner at Will Davidson LLP, it depends on where you live in Canada and on the specific coverage provided by your vehicle accident insurance policy.

“In Ontario, if you sustain physical injuries in a car accident you may be entitled to benefits, known as statutory accident benefits or no-fault benefits, regardless of fault," says Cahill. “Everyone involved – whether as a driver, passenger or pedestrian – has access to them, but they can be minimal, depending on the nature of your injuries.”

“Minor injuries aren't usually enough to file a lawsuit," warns Cahill. "In contrast, anyone with injuries such as a concussion, broken bones or worse that impact the person’s ability to work, care for him- or herself, and which hinder activities of daily living, like caring for a child, are reason enough to file one.”

“If someone else is deemed at fault and you’re not really injured, there’s nothing to sue for. You have to have serious injuries that are permanent to claim for damages,” Cahill explains.

What’s more, he adds, because rules governing accident benefits vary from province to province, he recommends you contact a personal injury lawyer in your area.

Should you decide to file a lawsuit, the sooner you begin the better, for two reasons:

“In Ontario, you have two years from the date of the accident to start a lawsuit,” notes Cahill, “although typically most people start within 12 to 18 months.”

More practically, if you're physically capable and emotionally ready, gathering details will be easier while they’re still fresh in your mind.

Generally speaking, when a statement of claim has been prepared and is served to the defendant against whom you wish to bring the lawsuit.

The most commonly claimed types of damages are:

Pain and suffering
This refers to physical and psychological injuries sustained in a car accident.

• The entitlement to compensation for "pain and suffering" varies between provinces. In Ontario, for example, the law requires the injuries to be permanent and serious in order to recover damages for pain and suffering.

Cahill cautions that convincing a court that psychological trauma is worthy of compensation is difficult. He explains, “Context is important. If you’re in a bad car accident and your spouse is fatally injured before your eyes, then context matters. The emotional devastation could impact you to the same extent as a physical injury if it left you, say, unable to work.”

Loss of income
If you can't work any more due to injury, then income replacement is vital to consider.

• Rules concerning the loss of income generally entitle the injured parties up to 70 per cent of their gross income loss up to the date of the trial and, following the trial, 100 per cent of any future loss of income.

Other types of damages
Although your car insurance policy may already provide minimal compensation, you may need to seek additional damages in your lawsuit for things including:

• Medical treatments and rehabilitation costs not covered by private or publicly funded insurance plans
• Attendant care costs to help pay someone to look after a seriously injured loved one
• Housekeeping assistance, funeral expenses, personal items lost in the accident and expenses for lost education time

Keep in mind, Cahill advises, that any pre-existing medical conditions (e.g., chronic back pain) could work against the final amount of your settlement.

Unlike what’s seen on TV, filing a personal injury lawsuit is a long, tedious process. According to Cahill, “A victim’s file is usually most active in the months following an accident; a lawsuit can take a year or two to resolve, and it may take between three to four years before a case makes it to court.” That's why being mentally prepared is key.

Why so long?
Your prognosis is vital to your claim and it could take time for a physician to get a proper determination regarding your recovery.

Is there an upside?
Cahill states, “Your claim won’t lose value. Interest will accumulate on the amount that you may eventually receive and the final determination from your trial is for your losses, past, present and future.”

Nobody ever wants to be in a car accident, but unfortunately they happen. If you’ve suffered physically and lost income as the result of a car wreck, which wasn’t deemed your fault, consider consulting a personal injury lawyer to assess your legal options.