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Posted On: July 14, 2009

2 Questions To Ask Before You Hire a Personal Injury Lawyer

2 Important Questions

There are two questions that almost every single client asks me during our first meeting. They are questions that I think every person who has suffered a personal injury should ask their lawyer before they decide to hire them.

The two questions are:

1. How long will this take?
2. How much will I get?
The honest answer to both of these questions (at least during the initial interview) is: “I don’t know”.

How Long Will This Take?

The golden rule of any personal injury claim is that you should never settle your claim until your injuries have completely resolved or until you know the full extent of any future residual disability that you may be left with as a result of your injuries. In other words, don’t settle your claim until you know how your injuries are going to affect you in the future.

It is often very difficult to tell, shortly after an accident, how long a person’s injury will last. It is usually impossible to tell what kind of long term residual problems they will have as a result of their injuries.

That means it is difficult if not impossible to determine how long it will take you to recover, how long it will take your doctors to provide a medical-legal opinion as to what your future limitations will be, what affect it will have on your future employment, what, if any, future rehabilitative or medical treatment you will require.

It is also impossible to say, in the early stages of a lawsuit how long it will take to complete document disclosure, complete discoveries of the parties, and get a trial date from the court.

While most experienced personal lawyers will be able to tell how long it takes to resolve a typical injury claim, your claim may not be “typical”. Every personal injury claim is unique and the best course of action depends on the particular facts of each individual case.

If a lawyer tells you in your first meeting exactly how long it is going to take before your claim is settled or how long it will be before you get to trial, ask them to put it in writing. Then you may want to consider talking to another lawyer.

How Much Will I Get?

The amount of compensation you will be entitled to receive for non-pecuniary damages (what is typically referred to as compensation for “pain and suffering”) depends a great deal on how long it takes you to recover from your injuries.

As I have explained above, it often takes months, sometimes years, for doctors to determine what the full extent of a patient’s injuries are and what the long term affects will be. That means it will take time to determine the full extent of the compensation you are entitled to receive for your non-pecuniary damages.

You are also entitled to recover compensation for things like loss of housekeeping capacity, loss of income, medical expenses and any other out of pocket expense you may have suffered as a result of your injuries.

In short, it will usually take a great deal of time and investigation to determine the full value of your claim.

If a lawyer tells you in your first meeting: "your claim is worth millions", ask him or her to put it in writing. When they won't, you may want to consider talking to an experienced personal injury lawyer.

Continue reading " 2 Questions To Ask Before You Hire a Personal Injury Lawyer " »

Posted by John McKiggan | | Email This Post

Posted In: Brain Injury , Car Accidents , Child Injuries , Insurance Claims , Medical Malpractice , Personal Injury

Posted On: July 8, 2009

Ontario Court of Appeal Tries to Bring Clarity to Calculating Loss of Housekeeping Claims

Landmark Ruling Regarding Loss of Housekeeping Capacity

In the 1991 decision of the Saskatchewan Court of Appeal in Fobel v. Dean, the court confirmed that loss of housekeeping capacity has value and an injured plaintiff is entitled to be compensated for the loss of that capacity.

Nova Scotia Confirms Claims for Loss of Housekeeping

In 1998, Nova Scotia Court of Appeal confirmed that the loss of housekeeping capacity is a separate and distinct head of pecuniary damages and must be compensated for accordingly. In Carter v. Anderson, Justice Roscoe stated:

“Future loss of capacity, where proved, should be compensated separately, whether or not replacement help has been paid in the past … the partial or total loss of that ability has economic value which should be recognized.”
In the 11 years since the Carter v. Anderson decision there has been a tremendous amount of confusion experienced by lawyers, insurance companies and the courts as to how to properly calculate a loss of housekeeping capacity.

Groundbreaking Decision in Ontario

The National Post has reported on a recent "groundbreaking" decision by the Ontario Court of Appeal that helps to provide some clarity. In McIntyre v. Docherty the Court of Appeal stated that in order:

"...to avoid this kind of confusion in future cases where different scenarios of housekeeping losses arise, it will be helpful if the jury can be specifically instructed regarding the type of loss at issue and the evidence in support of that loss."

Three Types of Housekeeping Losses

The court goes on to classify three different types of housekeeping losses.

Pre-trial: Work Left Undone

Justice Susan E. Lang for the Court of Appeal:

"Where the injured plaintiff is unable to perform some or all housekeeping tasks, and where a third party [i.e. a housekeeper] does not do the work in the injured person's stead, work will be left undone...In that situation, the injured plaintiff will experience two sorts of intangible losses compensable in an award of non-pecuniary [i.e. general] damages."

Pre-trial: Work Can Be Done, But with Difficulty/Pain

"A plaintiff may continue to undertake housekeeping but may experience pain or difficulty in doing so…He or she may be required to work more hours post-accident to accomplish the same amount of pre-accident housekeeping. If a plaintiff thus works 'inefficiently,' he or his non-pecuniary award would be increased to reflect any increased pain and suffering."

Pre-Trial: Work Done by Third Parties

"The law is well-established that where a plaintiff incurs a pre-trial, out-of-pocket loss by hiring a replacement homemaker, the plaintiff may claim the reasonable replacement costs of that homemaker as special [i.e. pecuniary] damages."
Decision Provides Clarity

The decision of the Ontario Court of Appeal is reasonable and, for the most part, mirrors the approach taken by most judges in the Nova Scotia courts. However, this decision is the first one that I have seen that clearly explains how to appropriately calculate different types of loss of housekeeping capacity.

Continue reading " Ontario Court of Appeal Tries to Bring Clarity to Calculating Loss of Housekeeping Claims " »

Posted by John McKiggan | | Email This Post

Posted In: Brain Injury , Car Accidents , Insurance Claims , Medical Malpractice , Personal Injury

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