Accident & Personal Injury Law

Determining if You Have a Claim for Compensation

Unfortunately, motor vehicle accidents occur every day resulting in serious physical and psychological injury and loss. There are many potential effects including: physical and psychological pain and suffering, medical treatment, financial impact from disability and/or lost employment and stress from dealing with the insurance companies. When you are injured in a car accident, you will have to immediately turn your mind to a wide variety of complex legal issues and make contact with insurance companies and treatment providers, all at a time when your injuries make you the least able to handle such issues on your own. The team of Accident & Personal Injury lawyers at BOYNECLAKE LLP understand what it means to pursue compensation for serious and critical injuries.

Specific Types of Accidents

Although we don’t like to think about it, there is a good chance that either you or someone you know will be involved in a motor vehicle accident at some point. We handle claims involving specific types of claims related to motor vehicle accidents including:

• Bicycle injury claims
• Bus and Transit Passenger injury claims
• Pedestrian injury claims
• Fatal injury claims

The Amount of Compensation You Will Receive

Some of the common types of damages typically claimed by an injured claimant are:

• Pain, suffering and loss of enjoyment of life;
• Past and future wage loss;
• Future medical care costs predicted that you will incur;
• Your out-of-pocket expenses arising out of the injury you sustained;
• Pension and other employment-related benefits you may lose;
• Value of replacing your inability to carry out housekeeping;
• Pre-judgment interest on general non-pecuniary damages and past losses;
• Aggravated damages or Punitive and Exemplary damages (in some circumstances);
• A contribution towards your legal costs.

The type and amount of damages that you can claim for are mostly dependent on the medical evidence. The Accident & Personal Injury Team at BOYNECLARKE LLP will assist you in assembling the required medical evidence and assessing your damages claim.

Insurance Caps

In Nova Scotia there may be a cap or limit on insurance benefits for general damages for pain and suffering for what are deemed as “minor injuries”. The cap does not apply to other damages such as lost income and medical expenses.

In 2010, Nova Scotia made a number of changes to the legislation, restricting the types of injuries that the provisions applied and increasing the “capped” amount, the minor injury cap is indexed to inflation. As of 2016 the minor injury cap in Nova Scotia amounts to $8,385.

After a motor vehicle accident we will work with you to get a proper assessment of your injuries. Just because your injuries are soft tissue in nature (e.g. whiplash) does not mean that your injuries are “minor” as defined in the legislation. The definition of what is “minor” is complicated. A member of the BOYNECLARKE LLP will assess how the Nova Scotia insurance caps apply to you.

How can my own insurance help pay for my immediate lost wages & medical costs?

Section B or otherwise known as no-fault benefits are benefits provided for anyone injured in a motor vehicle accident in Nova Scotia. Entitlement is regardless of fault in an accident. Benefits include payment for reasonable medical and rehabilitation expenses incurred within 4 years of the accident (sometimes beyond).

Each file is different and depending on your situation the benefits you can claim are as follows:

• Death benefits
• Funeral expenses
• Loss of income
• Medical and rehabilitation expenses
• Principal unpaid housekeeper

These benefits are usually provided by your own insurer after a motor vehicle accident where you sustained a serious injury. There are very specific requirements that must be met to qualify for the different types of benefits. It is important to speak with a lawyer to discuss how to best approach your Section B entitlements. We will ensure you take full advantage of the benefits you are entitled to and obtain compensation you need for your recovery.

Uninsured Drivers and Hit and Runs

 In some circumstances where the person responsible for the car collision was uninsured or the driver fled the scene “hit and run” you will have to claim from your own insurer under Section D Uninsured and Unidentified Motorist Coverage. You are covered by an automobile policy if you are the insured, the spouse or a dependant relative. Section D claims have a maximum limit of $500,000 in the Atlantic Provinces.

There are strict rules under the Unidentified Motorist Coverage claims with respect to the steps and investigations you are required to take before recovery is permitted. The best way to determine your insurance rights is to contact us to review your claim. We offer free consultations and there are no fees unless we get you compensation for your claim.

Timing and Limitations

 When you are injured in a car accident, you should not have to turn your mind to a wide variety of legal issues. However, it is important to collect evidence on your claim at the earliest opportunity because there are time frames otherwise known as limitation periods that apply to claims for compensation. A limitation period is a deadline in which you must commence a legal action by filing and having issued court documents from the appropriate court. Failure to commence an action within that time frame can result in loss of the right to claim damages.

The limitation period for claimants injured in a car accident in Nova Scotia is two years. Car accidents that result in fatal injuries have shorter limitation periods. Other provinces such as New Brunswick and Prince Edward Island have different limitation periods. Consulting with a lawyer about various limitations periods after a car accident is important.

 

Many individuals have disability insurance coverage which is designed to give you peace of mind knowing that you will have financial support for you and your family if you become disabled and unable to work. Unfortunately, many legitimate claims for seriously ill or injured claimants are improperly denied by the insurance company. In addition, many individuals who apply for Canada Pension Plan (CPP) Disability benefits are denied. These individuals are then forced to appeal the decision in order to obtain compensation but are often unsuccessful, or simply give up when they become overwhelmed by the process.  At BOYNECLARKE LLP, we have successfully helped clients apply for disability benefits, win internal appeals, and litigate claims which continue to be denied.

Determining if You Have a Claim for Compensation

Falls are no laughing matter – they can result in severe and disabling injury including, fractures, broken bones, spinal and head injuries such as concussions or brain injury. These injuries may result in permanent disability and chronic pain. One of the most frequent causes of injuries and claims for compensation (other than motor vehicle collisions) are injuries resulting from slips or trips and falls. They can happen anywhere. Under the Occupiers’ Liability Act in Nova Scotia an occupier is responsible to ensure that people coming onto the property are reasonably safe, and are required to maintain the property in a reasonably safe condition and free from hazard.

Causes of Slip and Fall Injuries

When occupiers fail to ensure the property is in a reasonably safe condition, it can cause mishaps resulting in injury. Slip and fall hazards are frequent and varied. Hazards that may cause slip and fall injuries include but are not limited to:

• Icy sidewalks
• Unclear stairways
• Poor lighting
• Spills

If you have suffered an injury resulting from hazards that could have been reasonably prevented by a property owner, you can take legal action.

 Types of Damages You Can Claim

If you’ve been injured you may be entitled to claim for the following damages:

• General non-pecuniary damages for your pain;
• Suffering and loss of enjoyment of life;
• Your past and future wage loss and diminished earning capacity;
• Your medical care costs (past and future);
• Damages for the value of your loss of valuable services (housekeeping and home maintenance and repair services);
• Your out-of-pocket expenses;
• Your legal costs.

Proving Your Claim

To succeed in a claim, you must prove that your fall was caused by someone’s negligence.  There are often simple and inexpensive steps that could have been taken to prevent your fall but the person or company responsible for the condition of the property or premises failed to take those steps.

Prompt and complete investigation is essential – it is crucial to immediately collect the evidence (such as photographs, witness names) required to prove liability in such claims, as such evidence can be removed or repaired before you are able to investigate and prove the cause. These can be difficult and involve complex legal principles and analysis, requiring a special expertise and experience on the part of your legal representative. We will work with you to obtain the compensation you deserve.

Occupiers Liability

In Nova Scotia, an occupier – the person responsible for controlling public access to the property is the person liable if someone is injured on the property. If you own a home, you are the occupier; if you rent a home you are the occupier. If you rent only part of a building – for example a duplex, or an apartment in an apartment building – you will be the occupier of the portion you rent, but you may also be the occupier of the common areas. There can be more than one occupier and you do not need to have exclusive control to be liable.

These claims can often involve Occupiers Liability Act claims against property owners (or occupiers) who create or fail to repair dangerous or hazardous conditions on their property.  Even if you are a guest visiting private premises, if you are injured you may be entitled to compensation.

• Animal Attacks
• Assault & Sexual Assault
• Bar & Tavern Liability
• Boat & Marine Accidents
• Fire Loss Claims
• Insurance Claims (Life, Disability, Motor Vehicle, Home)
• Nursing Home & Elder Abuse
• Product Liability
• Tort Law & Negligence

If you are looking for a speaker for a meeting or a special event please email us at marketing@boyneclarke.ca. Click here for a list of presentations we offer.

Every claim is fact specific. Our Accident & Personal Injury team will be pleased to take the time to provide you with a free consultation and work with you to determine if your claim is worth pursuing.

Your initial consultation is free. In many cases our Accident & Personal Injury team uses contingency fee agreements as a method of payment. This means your legal fees are calculated as a percentage of the settlement we obtain on your behalf. Medical malpractice claims are charged hourly and require a retainer. Please contact your lawyer to further discuss how your fees will be determined.

Our team of lawyers and staff will gather all the information needed for your file. We will liaise with the doctors, the court, insurance adjusters, other lawyers and other parties involved so you can focus on getting better.

You can contact your lawyer or a member of the support team if your question is a general inquiry such as an update on your file. Should you have a question that requires legal advice, you must speak with your lawyer.

While most files (95% or more) will settle prior to the need for a trial, in some situations a settlement is not possible and a trial will be required to conclude the matter. If your file gets to the stage where a trial is required, then yes, you will likely have to attend court to testify, but not always. You will be involved in the decision as to whether or not your file goes to trial.

At the start of your claim, your lawyer will get in touch with representatives of the defendant (normally an insurance company adjuster). Once your claim can be accurately assessed, a demand or claim for damages is submitted in writing to that insurance company and negotiations occur in an attempt to settle the claim. From there, a mediation proceeding may be held where an independent mediator will attempt to obtain agreement between the parties. Our team has handled a large volume of files and is experienced in negotiating claims.

Once you have settled your claim, you sign a final release and your claim is closed and cannot be re-opened. That is why it is important to get legal advice and representation to obtain the best settlement possible. We handle cases in a timely manner and ensure your interests are protected.

Each claim is different. The length of your claim will depend on the complexity, wait time for medical appointments and diagnosis and how your recovery progresses.

We recommend waiting until you are fully healed or your doctor advises you that you will not get any better before you settle your claim. It is important to understand that once you settle your claim you cannot reopen it if your injuries worsen or flare up.

Our team is committed to resolving your claim in a timely fashion.

If a settlement cannot be reached, then the court process is initiated. A legal proceeding is commenced with the claimant filing a Statement of Claim and serving the defendant with a copy. The insurance company of the defendant will appoint a lawyer and a Defence is filed.

Rules of Civil Procedure in each Province govern the specific steps required in the litigation process. This will generally include exchange of documents and then formal Examinations for Discovery will be held.

Normally, further settlement discussions between the lawyers will be held following discovery examinations. If unsuccessful, then your claim will set down for trial, dates set, expert evidence finalized and witness attendance arranged.

Prior to any trial, it is normal for a Judicial Settlement Conference to be held, where a judge will meet with the parties, review the evidence and provide a candid opinion on the probable outcome of a trial, and will assist the parties in reaching agreement on a settlement.

This is a complex question that involves legislation, decisions from past claims and many other factors.

Your lawyer can only determine the amount your claim is worth once all the medical information is gathered and case law research is complete. Your lawyer will then discuss your potential settlement with you in detail and obtain your input and instructions.

Section B “no fault” benefits are benefits provided for anyone injured in a motor vehicle accident. Entitlement is regardless of fault in an accident. These benefits are usually provided by your own insurer. However, there are certain circumstances where they are provided by the insurance company of the person that caused the accident – such as when a pedestrian or cyclist without a vehicle is involved in a collision.

Section B benefits that you may qualify for include a medical benefit component and either a loss of income component or a loss of housekeeping component.

There are very specific requirements that must be met to qualify for the different types of benefits. Also, there are now two tracks for medical benefits depending on the severity of your injuries. It is important to speak with a lawyer to discuss how to best approach your Section B entitlements.

You should be visiting your doctor regularly to provide them with an update on your progress and anything new that has come up. If your condition has changed dramatically you need to advise your doctor as soon as possible in order to address a new treatment plan such as referrals to specialists. We will only get the information you provide to your doctor so it is important to be detailed and thorough. If you still notice problems from your injuries but you have not seen your doctor for an extended period of time then your doctor may conclude that you have fully recovered. Not informing your doctor of all the necessary information could affect the results of your claim.

Usually Section B is not responsible for paying any portion of medical treatment required that is recoverable under any other insurance contract. This means that you must first exhaust your own private medical insurance first before Section B insurance benefits pay. Typically, these private medical insurance policies are through such companies as Medavie Blue Cross, Sunlife, Great West Life and Desjardins for examples. Your lawyer and support staff can assist you with any questions you may have as to who pays for what medical expenses.

You should keep a record of all medical and rehabilitation expenses you have had to pay out of your own pocket that have not been reimbursed by a medical insurance plan. A typical example of an out-of-pocket expense would be over the counter Tylenol or Advil, slings, crutches, bandages and housekeeping services.

If you keep your receipts for these items and provide them to our office, we will add these expenses to your settlement claim.

If you are eligible for Worker’s Compensation benefits as a result of your injuries, you must decide to either pursue a WCB claim or a personal injury claim; you can discuss this with your lawyer. If you are pursuing a personal injury claim you need to inform the WCB of your intentions. There are very strict rules, forms that must be filled out and returned to WCB and you must meet the required deadlines in order to elect to pursue a personal injury claim.