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Personal Injury Awards aren’t always what they seem.

Unless you have been injured in a car accident in Ontario, you may not be aware of the various restrictions on your right to sue the at-fault driver for general damages. Many motorists assume they will be entitled to receive an amount of money that represents the court’s assessment of the pain and suffering they have endured as a result of the car accident. In reality, many car accident victims do not receive any amount of money for pain and suffering – even if they are not at fault for the accident.

The Threshold

The first barrier to receiving an award for pain and suffering is what is known in the industry as the “threshold”. Under the current automobile legislation, an amount for pain and suffering is only awarded against protected defendants (the owner or occupant of the other car and/or anyone present at the accident scene) in circumstances where the injured victim has sustained:

⇒ a permanent serious disfigurement; or
⇒ a permanent serious impairment of an important physical, mental or psychological function.

As you can imagine, whether or not your injury will qualify under this permanent and serious test depends on a variety of factors, including, but not limited to, the impact your injuries have on your ability to work or carry on your usual activities of daily living and the length of time your impairments are expected to last. The bottom line is that unless your injuries pass this threshold test, you will not be entitled to receive any amount of money to compensate you for your pain and suffering related to your car accident injuries.

The Deductible

If your injuries are severe enough to pass the threshold, you are entitled to claim an amount of money to compensate you for your pain and suffering. Suppose a court finds that a fair estimate of your pain and suffering is $40,000. Unfortunately, that is not the end of the story. Under the current automobile legislation in Ontario, an amount of $30,000 is automatically deducted from any pain and suffering award, unless the initial amount awarded is greater than $100,000 or optional coverages have been purchased. This $30,000 is known as the statutory deductible. So, in our example of an assessment of $40,000, the amount the victim would be awarded is only $10,000.

Furthermore, if you are injured in multiple car accidents with more than one claim for damages for pain and suffering, the Ontario Court of Appeal recently confirmed in its decision in Martin v. Fleming that the statutory deductible must be applied to each pain and suffering award.

Experts in Car Accident Litigation

As the above discussion illustrates, car accident litigation is not always as straightforward as one might think.   That is why it is so important for car accident victims to speak with a personal injury lawyer experienced in car accident litigation.  Ferguson Barristers has the experience and knowledge to ensure your rights are being protected, that the proper referrals are being made and that all possible avenues for recovery are being advanced.  Contact us today toll free at 1-800-563-6348 for a free initial consultation.

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