HAVE YOU BEEN INJURED IN AN AUTOMOBILE ACCIDENT?
Every year thousands of Nova Scotians are injured in automobile
accidents. For many this will be the first time they retain a lawyer.
Although the legal process of resolving an accident can seem overwhelming,
a lawyer can assist in explaining each step so that informed decisions
can be made while you focus on recovering from your injuries.
THE ACCIDENT
Should you be injured in an automobile accident there are several
steps which should be taken immediately. It is absolutely imperative
that you get information about the driver and automobile which struck
you as well as the insurance company which insures that vehicle.
The accident should be reported to the authorities as well as to
your own insurance company. Anyone injured in a motor vehicle accident
should seek immediate medical attention. You should not talk or
provide a statement to anyone other than the adjuster for your own
insurance company. You should not sign any documents concerning
the accident without first consulting your lawyer.
LIABILITY
In Nova Scotia, liability (legal responsibility) is apportioned
according to each driver’s role in causing the accident. For
example, in a typical rear-end collision, the individual who caused
the accident would usually be 100% responsible for the injuries
and damages. In a situation where both cars hit head on and each
car was partially across the centre yellow line at the time of impact,
liability might be apportioned 50/50.
It is therefore extremely important that the names of any witnesses
be obtained and provided to your lawyer as quickly as possible.
Your lawyer will review the facts and give you an opinion on liability.
If liability cannot easily be determined by the insurance companies
and the lawyers representing those involved, it may be necessary
to go to court.
THE "minor injuries" CAP
On November 1st, 2003, the Province of Nova Scotia made changes
to the Insurance Act. The changes apply only to motor vehicle accidents
that happen on or after November 1st, 2003. The most significant
change was a “cap” on “minor injuries” for
general damages for pain and suffering.
Again, the cap only covers pain and suffering and does not include
additional claims such as loss of income or out-of-pocket expenses.
You should consult a lawyer to determine how the cap affects your
particular case.
SECTION B BENEFITS
Regardless of fault, injured parties may receive certain accident
benefits from their own insurance company. These are known as Section
B benefits, and are provided by the insurer of the automobile in
which the injured party was a driver or occupant. Payment of these
benefits does not mean that fault or legal responsibility for the
accident has been decided. Section B accident benefits are meant
to ease the financial burden a person might otherwise experience
until settlement of the claim. Some expenses covered by Section
B benefits include medical, physiotherapy, travel and funeral expenses.
Perhaps the most important benefit allows for an injured party to
receive the lesser of $140.00 per week or 80% of their gross weekly
income while disabled from work. Your lawyer can try and help you
recover any remaining lost wages from the insurer of the vehicle
of the driver who caused the accident.
THE ROLE OF YOUR LAWYER
An individual injured in an automobile accident is not required
by law to retain a lawyer. However, it is certainly recommended
that an individual consult a lawyer to obtain an opinion as to the
merits of a claim and the amount of damages that might be of great
assistance. The lawyers at Landry McGillivray provide free initial
consultations to people injured in automobile accidents.
Should you choose to hire a lawyer, he or she will begin to document
your file. Even though the majority of personal injury cases are
resolved through settlement before trial, your lawyer will proceed
as if the case will ultimately go to trial.
With this in mind, your lawyer will ask you to keep track of day-to-day
expenses, keep a daily journal, keep regular contact with your doctor,
and follow all medical instructions. Your lawyer will contact the
adjuster who represents the insurance company of the driver who
caused the accident and will keep the adjuster updated as the file
progresses. Your lawyer will also meet with you on a regular basis
and obtain medical reports as your file progresses. After your injuries
have stabilized or resolved, your lawyer will prepare a settlement
proposal. If a settlement cannot be negotiated with the adjuster,
then your lawyer will discuss the possibility of proceeding to trial and having
the courts determine what is fair compensation for the injuries
and losses you have suffered.
Medical evidence is vital to the satisfactory resolution of any
personal injury case. Usually on your initial visit with your lawyer
you will sign a medical authorization which allows your lawyer to
talk with your physician(s) and obtain medical reports as required.
It is important that you stay in touch with your family doctor,
your physiotherapist and/or specialist and follow the advice of
your medical professionals. Reports obtained from doctors and health
care professionals are an important part of the evidence upon which
your claim will be based.
The medical reports obtained by your lawyer will describe the severity
of your injuries and affect the level of compensation which you
will receive. To ensure that the best possible medical reports are
generated it is helpful for you to keep a daily journal and keep
in regular contact with your physician. Update him or her on your
condition on a regular basis and ensure that you keep scheduled
appointments.
THE TRIAL PROCESS
If your claim does not settle then you may have to take the matter
before the courts. The risk and merits of proceeding must be weighed
to determine what is most beneficial for you.
Many factors must be considered, such as the time it will take
to proceed to trial, costs, chance of success as well as the additional
anxiety of dealing with the trial process. It is important to remember
that you have only three years from the date of the accident to
start an action for damages suffered in a motor vehicle accident
in Nova Scotia. It could take many months before a trial date is
obtained.
Once a trial date is obtained your lawyer will prepare you for
trial. You will be called as a witness to testify about your injuries
and any expenses or lost income that you have suffered. The medical
professionals with whom you came into contact, including your doctor
and physiotherapist, might also be called to testify.
Friends and family who can speak to the injuries that you have suffered
might be questioned as well as your employer to confirm lost income.
The Defendant might call witnesses who could say that you were
responsible for the accident, that your injuries are not as severe
as portrayed at trial or that your financial losses are not as significant
as suggested. Basically, the defence will attempt to challenge the
amount of your claim in the area of both general damages and lost
wages. After hearing the evidence, the court will determine what
is appropriate compensation given the injuries that you have suffered.
LEGAL FEES
It is important that you know how you will pay for your lawyer before
retaining his or her services. Most lawyers will take a personal
injury file on an hourly rate plus disbursements basis. Under this
method the lawyer will calculate your fee based on the number of
hours spent on your file multiplied by his or her hourly rate plus
appropriate disbursements. This would ordinarily be paid out of
the settlement or recovery at court.
Another method of payment is the contingency fee agreement. Under
this arrangement a lawyer would receive a percentage of your award
rather than working on an hourly basis. The percentage would vary
depending upon when the matter was resolved. For example, the percentage
is higher if the lawyer is required to go to trial. A possible benefit
to the Contingency Fee Agreement is that you do no pay legal fees
if your claim is not successful, although you would have to pay
the lawyer’s disbursements and expenses.
Talk to your lawyer about whether payment by hourly rate or on a
contingency fee basis better suits your situation. Hourly rates
vary among lawyers.
CONCLUSION
We hope that this Advisor will shed some light on the personal
injury litigation process.
The foregoing is a simplified overview of a typical personal injury
case. A lawyer should be consulted regarding the specifics of each
of the issues raised above. Each individual’s claim will vary
depending on the nature of injuries, the type of losses incurred
and the degree of fault which is apportioned to the parties.
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