 Past and
future lost wages;
Past
housekeeping expenses;
Loss
of past and future housekeeping capacity;
Diminished capacity to perform valuable
services;
Coverage
for expense such as physiotherapy,
chiropractic, massage,
prescriptions and
other treatment recommended by your doctor.
The Cap applies only to “general damages” which are to compensate you for your pain, suffering and loss of ability to partake in enjoyable activities. In order for your general damages claim to exceed the cap we will have to demonstrate that you have “suffered a serious and permanent impairment of an important bodily function”. There is some Ontario case law that applies where they had a similar provision in the early 1990’s. The Ontario Court of Appeal case basically says things like this:
1. It is not difficult to prove that the bodily
function being affected is an “important bodily
function”. Most soft tissue injuries involve a neck
and back. Regardless, all bodily functions are
important otherwise we would not need them. The
function of ones neck or back or other areas of
their body are obviously important and they are a
bodily function. This part of the test is not all
that difficult to meet.
2. The impairment must be “permanent”. If a soft
tissue injury lasts up to a year or longer than it
is likely to be permanent. That seems to be the
opinion of the medical professional who deal with
this type of thing. After two years the medical
professionals indicate that it is unlikely for there
to be further improvement. On this point, if your
injury is fully recovered and there is no residual
effect then you are unlikely to exceed the cap.
However, even if there is substantial improvement,
the residual affect and flare ups are likely to be
permanent if they are still effecting someone after
six months, a year, or longer. Unfortunately, to
properly evaluate your claim and to see if you have
a chance of exceeding the cap we will have to wait
and monitor the situation at least one year.
The final aspect of the test is that the permanent
impairment of an important bodily function must be
“serious”. This word is to be given its ordinary
meaning. A Court is likely to find the impairment
serious if it effects or prevents an injured person
from taking part in an activity or activities that
they particularly enjoy. Also, if the person’s work
is significantly affected, or if they are unable to
work, then that would, of course, be the “serious”.
Also, if the accident affects your ability to do
housekeeping and chores around the home in a
significant manner than that would likely allow the
Court to find that the injury is serious. Serious is
defined in terms of how the injury effects your
life. It has to have a serious impact as opposed to
just a minor impact.
In summary then, in order for your claim to clear
the “minor injury” cap we will have to demonstrate
one or more of the following points:
One example is
an impairment of a little finger. This normally
would not be serious except if ones favorite hobby
or passion is playing the piano. Whether an injury
is “serious” is unique to that particular person and
its impact on their unique and individual life. In
deciding whether or not a case clears the cap the
Court will have to know the individual circumstances
of your case.
All of this is fine in theory but the difficult part
is documenting the problems. Depending on the course
of your injury, we have determined that it may clear
the cap but we recommend that you do the following:
For better or
for worse, the insurance company will put a lot of
weight into the number of visits to your family
doctor as well as the information that you relay to
your family doctor.
be sure
to describe to your family doctor how the
injury is impacting on your work, home, and
recreational life.
Follow
all treatment recommendations from your
family doctor and others involved.
Ensure
that you attend your physiotherapy
appointments
If you
are still having residual effects do not be
embarrassed to let your doctor know so that
the effect is documented.
Do not
let your doctor or physiotherapist put words
in your mouth, be sure to describe things
accurately because one wrong note in their
file could be fatal to your claim.
Fill out
the forms that we have provided to you and
return them to our office on a monthly
basis.
Remember
that when you speak to your Section B
insurance adjustor they are likely making
notes or recording the call. In this sense,
do not let them down play your injury and be
careful what you say because something are
taken the wrong way. For example, the
adjustor might simply ask “how are you
doing?” and if you reply “fine” they will
note that you are not suffering any effect
from the injury. We have seen this on many
occasions.
Provide
letters, witness statements, or have us
obtain them for you. These could come from
people that you work with, people you took
part in activities with, your family, and
anyone else that can provide evidence as to
the seriousness of the effect of your injury
on your life.
Meet with
myself or someone at our office every three
months to update on how you are doing and
such. |
The
legislation was promoted by the insurance company as
getting rid of “minor injuries”. In fact, the
wording is different than that but, hopefully, the
judges will take into consideration the intent of
the legislation. Many people who suffer soft tissues
injuries will likely take the $2500.00 when, in
fact, their injury would clear the cap and they
could be entitled to many times that amount. Soft
tissue injuries can have a more debilitating effect
than skeletal injuries. For example, often a
fracture can heal in an uncomplicated fashion and it
is as if there was never an injury. Unfortunately,
with muscles and ligaments if those are torn or
stretched the effect can be permanent and serious.
It is one thing for your injury to be serious and
permanent where it is another thing for us to prove
that in Court. This is why we need you to complete
the forms, see your doctor, and follow up on
treatment recommendations.
There are two advantages to keeping a housekeeping
log. Even if your case does not clear the cap, the
time that others spent doing housekeeping for you is
something that you can get compensation, for even if
you did not pay them. The fact is that they would
not have to be doing that extra work were you not
injured by the negligence of another driver. Thus,
any housekeeping that a family member or friend does
for free is still something that you can obtain
compensation for at the market rate for
housekeepers. Even if your case does not clear the
cap, you will still be able to obtain compensation
for this type of damage. As you can see, then, there
are two reasons to keep track of housekeeping losses
and valuable services:
To help
your general damages to clear the cap, and
to obtain direct compensation for the extra
housekeeping work others do for you. |
In conclusion,
the new law put down by the Progressive Conservative
government is unfair. It is increasing the profit of
the insurance companies at the expense of victims of
injuries such as yourself. The fact is that injury
victims do not form an interest group, as such, nor
do they have a voice in government. The insurance
companies on the other hand have millions of dollars
that they spend on lobbyists who are well motivated
and extremely effective at harassing and charming
our politicians into carrying out their wishes.
Also, the insurance companies have hijacked our
government by increasing the rates such that all of
the consumers would look to the government for help.
Basically, our government is largely controlled by
corporate interests and certainly not those of it
citizens.
All of that aside, you have been injured in a claim
and we do feel that there is a reasonable chance
that you will clear the general damage cap provided
your claim is properly documented and you follow up
on treatment recommendations. We should meet every
two or three months and at some point we will make a
decision as to if and when we will make an
application to clear the general damages cap.
Likely, the application will not take place until at
least a year after your injury. It is unfortunate
that you will not receive timely compensation but
this is the law that the government made. The point
is that once your general damages exceed the cap
then the claim would involve a significant amount of
money for pain, suffering, and loss of enjoyable
activities. In this sense, it is well worth waiting
to properly assess your claim and to ensure that you
receive fair and adequate compensation.
THE CAP ON
GENERAL DAMAGES
The Nova
Scotia cap has wording very similar to Ontario’s
1991 Act. Ontario cases are now helpful to the Nova
Scotia Courts. In Nova Scotia now, to obtain
compensation in excess of the $2500 cap, a victim
must have an injury that meets the following test:
The words
serious and important are to be construed in the
light of the circumstances of the individual
plaintiffs.
The leading case which explains these principles is
Meyer v. Bright (1993), 110 DLR(4th) 648 (Ont CA).
THE ONTARIO COURT OF APPEAL’S TEST
1. Has the injured person sustained permanent
impairment of a bodily function caused by continuing
injury which is physical in nature?
2. If the answer to question #1 is yes, is the
bodily function, which is permanently impaired, an
important one?
3. If the answer to question #2 is yes, is the
impairment of the important bodily function serious?
IMPORTANT
The bodily function referred to must be one which is
important to that particular injured person. One can
easily imagine a bodily function which would be of
importance to one person but not to another. An
example is an impairment of the movement of the
little finger of the left hand through its full
range of normal movement. That bodily function may
have no importance to a right-handed judge but may
have importance to a violinist or to the operator of
a word processor.
Every bodily function does not meet the test,
otherwise the word "important" becomes meaningless.
It is only those bodily functions which are
important to the particular injured person which can
amount to important bodily functions.
Because of the infinite variety of the human
condition and of human activities, it is impossible
for the court to lay down any general guidelines to
the application of "important bodily function" to
all injured persons. Each case will essentially be
one of fact. What must be considered is the injured
person as a whole and the effect which the bodily
function involved has upon that person's way of life
in the broadest sense of that expression. If the
bodily function is important to the particular
injured person, then the bodily function in question
is an important one.
It is inappropriate for us to attempt to define the
word "important" because it is a word which is
commonly used. The definitions of the word found in
dictionaries are largely composed of synonyms which
are of little value.
The issue is whether the bodily function which has
been impaired is an important one to the particular
injured person. It is an issue of fact to be
determined according to the evidence in each case.
SERIOUS
As with the word "important", dictionary definitions
of the word "serious" contain synonyms which are of
little value. "Serious" is a word which by its very
nature imports a sense of degree and probably
imports a range. In order to qualify as serious an
impairment must be serious -- no more -- no less.
It is simply not possible to provide an absolute
formula to determine what is "serious". A serious
impairment is one which causes substantial
interference with the ability of the injured person
to perform his or her usual daily activities or to
continue his or her regular employment.
An impairment of an important bodily function which
is serious to one person may not necessarily be a
serious one for someone else. The question will
always be the detrimental effect which the
impairment has upon the life of the particular
injured person. It is impossible to lay down general
guidelines of the concept of seriousness in all
cases. Each case must be decided upon its own facts.
For example, a violinist whose movement of the left
little finger is impaired. If the violinist is an
amateur who is not highly skilled and who plays for
his or her own amusement the impairment may not
seriously affect the quality of performance. In such
a case a court might well find that the impairment
is not a serious one. However, to a highly skilled
professional concert violinist the impairment may
detrimentally affect performance to such a degree
that the person can no longer attain the level of
competence necessary for the continuance of a
professional career. In such a case a court might
find the impairment to be a serious one. Yet again
if the impairment was sustained by the same person
but only after he or she had retired and decided not
to play the violin any more, a court may consider
the impairment not to be a serious one.
Disfigurement
According to its ordinary English meaning
"disfigurement" means the marring of the figure or
appearance of something, an external injury which
detracts from personal appearance.
A disfigurement must have the effect of marring or
detracting from the appearance of the individual as
a person. Each injured person is different. Whether
a particular injury mars the appearance of the
injured person will depend almost entirely upon the
circumstances of that person's life.
Serious
If a court decides that the injured person sustained
a disfigurement it then must go on to decide whether
it is a serious one for that person. The extent of
the disfigurement, its location, and the effect that
it has on the injured person and on that person's
life determine whether or not it is serious.
Charter Challenge
The cap on general damages is a victory for the
economic elite in New York and Toronto. It is
another example of the exploitation of the working
people. The shareholders are going to have more
profit at the expense of your pay cheque, and at the
expense of the injured. Our government was
overwhelmed by the insurance lobbyists and their
propaganda machine. The insurance companies are
winning the battle in about half of the states in
the US and one half of the Canadian Provinces. We
will continue to fight the battle for the injured in
the Courts, on a case by case basis, and by working
with non-profit associations such as the coalition
against no-fault insurance.
The cap on general damages is a victory for the economic elite in New York and Toronto. It is another example of the exploitation of the working people. The shareholders are going to have more profit at the expense of your pay cheque, and at the expense of the injured. Our government was overwhelmed by the insurance lobbyists and their propaganda machine. The insurance companies are winning the battle in about half of the states in the US and one half of the Canadian Provinces. We will continue to fight the battle for the injured in the Courts, on a case by case basis, and by working with non-profit associations such as the coaltion against no-fault insurance.
We are challenging the insurance cap where it is discriminatory against those with physical and mental disability, therefore contrary to Section 15(1) of The Charter if Rights, a charter challenge against the Alberta insurance cap was struck down in February, 2008. The Nova Scotia charter challenge is being heard before our Supreme Court in October 2008.
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