Personal Injury

What if I or the other driver don't have insurance?

‍Answer: Ontario's auto insurers provide accident benefits and liability insurance. The accident benefits claim and the tort claim both work together toward covering your losses stemming from the accident. So, what happens when one of the parties involved doesn't have insurance? I've listed the most common scenarios:

A rear-ends B. A doesn't have insurance. B does have insurance:

The standard Ontario insurance policy includes coverage in-case the at-fault party is uninsured or underinsured. B's insurer would be on the hook for the accident benefits and the damages caused by the at-fault party as well (tort claim).

A strikes B (a cyclist). A has insurance. B doesn't have insurance:

In this case, it's up to A's insurer to provide both accident benefits in addition to compensation for the damages caused by A.

A is a pedestrian struck by driver B. A is injured. Neither A nor B have insurance:

In this circumstance, plaintiffs turn to the Motor Vehicle Accident Claims Fund. The fund may provide:

• Accident benefits
• Death and funeral benefits
• Compensation for personal injury or property damage (except for vehicles)

Although the fund does not work exactly like an insurer, it does provide a safety net for injured parties with no accessible insurance policy.

Resources:

• https://www.ontario.ca/laws/statute/90i08
• https://www.ontario.ca/laws/regulation/100034

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Somatic Symptom Disorder - What is it and how can we prove it?

The Supreme Court of Canada (SCC) recently crystallised the importance of considering how psychiatric injuries accompany physical ones. In Saadati v. Moorhead, Saadati was in a car accident and suffered psychological and emotional trauma. He was awarded damages for mental injury based on the evidence of a lay witness who explained that Saadati’s personality changed post-accident. Expert evidence was not necessary, and the award did not need an attached “recognizable psychiatric illness.” The court found that requiring mental injury to pass the threshold of medical-expert testimony showing a “recognizable psychiatric illness,” while not requiring the same “classificatory label” of physical injury, would amount to unequal protection for those with a mental injury.

This SCC decision confirmed that the law of negligence accords identical treatment to mental and physical injury. This is a decision that is often looked at, as of late, with an overwhelming increase in the diagnosis of somatic symptom disorder (SSD). In dealing with my fair share of personal injury cases, I’ve started to notice this increase. The criteria for the illness remain broad, and like so many other cognitive/psychological conditions, it tends to be met with quite a bit of push back from defendants.

The DSM-5 characterises the condition as follows:

“SSD is characterised by somatic symptoms that are either very distressing or result in significant disruption of functioning, as well as excessive and disproportionate thoughts, feelings and behaviours regarding those symptoms. To be diagnosed with SSD, the individual must be persistently symptomatic (typically at least for 6 months).”

I tend to see this diagnosis when clients are suffering from longstanding subjective physical symptoms. The client is in extreme physical distress, but there’s no explanation of where this additional distress comes from. The pain felt by the client is otherwise disproportionate to the actual seriousness of the injury. I’ve always viewed it as an uncontrollable dispute between the body and the mind. I say this because typically the body is ready to be healed but the mind isn’t.

The proof isn’t as solid as we wish it was. The driving force of the diagnosis is the client’s own reaction to assessment and medical investigation. An SSD case can often be met by an assumption of “fake” injuries or plaintiff malingering. However, the SCC worded it properly when stating that the trier of fact should “not [be] concerned with the diagnosis, but with symptoms and their effects.” This point should always be emphasised when dealing with SSD cases. Focusing on the genuine statement of lay witnesses and providing a clear historical approach of the impact caused by the negligent act, remains the best means to put forward a strong SSD case.

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I was injured in a car accident which was not my fault more than 3 years ago. I have just learned that as a result of my injuries I will need surgery and may never be able to work again. Before learning this from my doctor I had believed my injuries were not that serious and I would fully recover. Can I sue the driver that hit me?

Limitations and their exceptions

‍That is a complicated question. Generally speaking, although there are exceptions, you may commence an action for damages in Ontario anytime up to 2 years after an event, or after you reasonably learned of the consequences of an event. If you know of the consequences of an event where you suffered injuries or losses, you generally lose your right to sue as of the second anniversary of the loss.

There are various exceptions to this rule. Recently, the Ontario Government has abolished limitation periods for victims of sexual assault.

Furthermore, limitations generally don’t apply to people under a legal disability, and that includes minors (people under the age of 18).There is also a legal doctrine of discoverability. Discoverability provides that a limitation period does not begin to run against a person until that person knew or ought to have known of a loss, and in some cases the extent or seriousness of a loss can be an issue.

What should you do?

‍The first thing you should do is get legal advice from a Lawyer as soon as you become aware that something has happened. There are other shorter limitation periods including notice periods which can be just a few days, arising in some circumstances. A Lawyer can give you advice and help you pursue your rights as appropriate.

Secondly, even if you think too much time has gone by, you should consult with a Lawyer. If circumstances provide an exception to the usual limitation periods, a Lawyer will be able to advise you of this fact and advocate on your behalf.

All cases are specific to their facts and the above information should not be relied upon to determine rights in particular circumstances. Lawyers often provide no obligation free and confidential consultations to prospective clients. So it is a good idea to seek out legal advice from a Lawyer if you have any doubt or questions about your rights.