Scales of Justice Personal Injury Law

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Topics on this page:

What is tort law?

Toxic Torts

Personal Injury Law

What if my accident claim is too small to hire a personal injury lawyer?

How to Maximize Damage Recovery.

Professional Malpractice or Negligence

Slander, Libel and Defamation of Character

Legal Fees

Links to more Information

Personal Injury Law

Personal injury law encompasses all types of physical and psychological injuries such as:

  • injuries arising from motor vehicle accidents,
  • occupier's liability claims,
  • public liability claims,
  • negligence of school boards,
  • public transportation and recreational facilities,
  • product liability claims,
  • catastrophic loss claims such as accidents resulting in paraplegia.

Personal Injury Law, Malpractice, Tort Law

Tort:
Derived from the Latin word "tortus" which meant wrong. In French, "tort" means a wrong. Tort refers to that body of the law which will allow an injured person to obtain compensation from the person who caused the injury.

The primary aim of tort law is to provide relief for damages incurred and deter others from committing the same harms. The types of damages the injured party may recover are:

  • loss of earning capacity,
  • pain and suffering,
  • reasonable medical expenses, including present and future expected losses.

Specific torts include:

  • trespass,
  • assault,
  • battery,
  • negligence,
  • products liability, and
  • intentional infliction of emotional distress.

Tort law determines when the person who causes the harm must pay compensation to the person who suffers it. This is dependent upon:

  • the nature of the conduct of the person who caused harm,
  • the nature of the harm and the circumstances in which the harm was inflicted.

What if my accident claim is too small to hire a personal injury lawyer?

Studies have shown that approximately 60% of accident victims settle with the insurance company without using a personal injury lawyer. Are these people saving money in legal fees or losing money by settling for less than they have to?

No one can negotiate a fair settlement if they don't understand the process and have no idea what their claim is really worth! What do you do when:

  • Meeting with the Insurance company;
  • Seeing your doctor;
  • Getting your expenses paid;
  • Settling your claim?

No one would argue that on a small claim of say $15,000 that you hire a lawyer to do all the negotiating and all other work for you. If you did this then all your settlement would go to legal fees.

There is a happy alternative that will give you the peace of mind that you have done the right thing; get you the highest settlement on your claim and keep your legal costs at a minumum.

If you think your claim is a small one we suggest you contact a personal injury lawyer and hire him or her to give you:

  • an opinion as to what the claim is worth;
  • an outline of the steps you should take to negotiate a fair settlement.

    This opinion should cost you a few hundred dollars and may have to be paid "up front". Ask the lawyer before the meeting how much this will cost and whether they can do it for a flat fee rather than at an hourly billing rate.
  • When you meet with the lawyer be organized. Have your facts at hand and pertinent documents available. Refer to our page on Dealing With Lawyers.

    If you do this you will accomplish the following:

  • Achieve the highest possible settlement, after considering the small fee paid for the legal opinion;
  • Find out how to deal with the various stages of the process;
  • Have the satisfaction and peace of mind that comes with knowing you have done all the right things.
  • How to Maximize Damage Recovery in a Personal Injury Claim.
    by John A. Sutherland

    Document:

    Document all injuries as soon as you are able and keep documenting them throughout the course of your claim. Many Plaintiffs fail to properly document their injuries initially or continuously throughout the term of their disabilities and injuries. Start off when you are able to keep a diary of all problems that you encounter as result of the accident. This should include the types, frequency, locations and duration of pain and other injuries. Also if possible on a scale of 1-10 try to document how the injury has changed, if at all from the time of the initial injury as you proceed over the course of time.

    Treat Consistently:

    Make sure you continue courses of treatment recommended by your health care providers. Do not stop treatment unless this is on the advice of your health care providers. Many Plaintiffs present a confusing picture to the Defendant’s insurance company by having started treatments and failing to continue with these making it appears suspicious that the injuries are not as severe as the party claims. Many times physiotherapy is started, a few treatments are taken and then the injured person becomes disillusioned with the results and simply stops the treatment.

    Retain An Experienced Personal Injury Lawyer:

    Hire as soon as possible a personal injury legal specialist. This is a lawyer who devotes the majority of his practice to personal injury cases. This is not only a lawyer who advertises for personal injury cases, but also has the skill and experience to tackle and provide a wealth of experience in terms of interpreting and deciding on courses of action for the treatment, resolution and documenting of the injuries. Just like in real estate there are some lawyers who spend large amounts of money advertising to steer respective clients to their door. However, they do little, if anything once the case has come into the office other than trying to achieve fast settlements that are usually well below what the case is actually worth. A Good indication of an experienced counsel is whether or not he or she is a member of any organizations such as the Association of the Trial Lawyers of America or State or County personal injury bar. People that belong to these organizations tend to be well trained, efficient and dedicated in handling a personal injury case.

    Record:

    Be sure to record all expenses and receipts. If you intend to recover monies laid out and expended for prescriptions, operations, even taxi fares, parking, any type of expense associated with your injury, you will have to keep some form of receipt or invoice to show that these amounts have been paid. As well, this type of record keeping provides a basis for settling with an insurer because most insurance claims people will settle based upon the extent of the out of pocket expenses incurred or the special damages which is often what these are called by the insurance people.

    Have Patience:

    Do not be in a hurry to settle your case. Most people become frustrated and simply want to settle their case as soon as possible in order to relieve themselves from the tensions of being involved in accident litigation case. Keep in mind that there are only two times to settle. Usually these are when you have improved to the point that you are basically at your pre-accident state, that you have been certified recovered by your health care professionals, and have reached a maximum point of recovery from your injuries. Until either one of these situations has been reached it is unwise on the part of the Plaintiff to attempt a settlement. What you end up doing is omitting those unrecovered types of expenses for treatments that may not have foreseen at the time of the settlement

    Be Consistent In Your Complaints:

    Always be consistent in your complaints. Most people in documenting and pursuing their injury claims lack credibility or truthfulness in the eyes of the opposing insurance company. When being examined by your family doctor it is preferable that you state in clear unambiguous language the problems that you were suffering from so that the doctor can document these in your patient chart. It will state clearly that the symptoms initially remain current and that all the initial reports of problems are well documented and continued to be well documented by the doctor on each and every visit.

    Corroborate:

    Try to establish with your friends, relatives, co-workers and associates corroboration for injuries, especially injuries that involves soft tissues. Only those close to you know the extent of the pain that you are going through. These people will be called at a later time to document and confirm your injuries.

    Be Realistic:

    Be realistic in your demands. Again the issue is one of credibility. People who tend to loose credibility with the opposing insurance company are those that seek large awards for injuries that are not consistent with the size of the claims being pursued. Juries, judges and insurance adjusters are more convinced of the truth of claimants’ injuries when the claim being made is a realistic one.

    Think Long Term:

    Try to base your claim on long term goals that you hope to achieve with the compensation that you are seeking. For example a person who says they have been unable to return to work because of the injuries would go farther in making sure their claim would be accepted by saying “I can no longer return to my previous work but I have a strong interest in another field, which would require me to return to school for a period of time in order to become retrained to go into that type of work”. Insurers are more likely to find this type of retraining expensive.

    Photos, Photos, Photos:

    Use lots of photographs in documenting your injuries. If as a result of the injury you have gained weight, be sure to document this with a pre and post accident type of photograph. If your injury involves disfiguring scars, make sure that you have these vividly portrayed. It is a good idea to ensure that your lawyer has the services of a good photographer who can document your injuries going through the various stages.

    These tips on how to maximize damage recovery are provided by John A. Sutherland. Mr. Sutherland has practiced personal injury law since 1967. He operates his practice out of Calgary and can be reached at Email.

     

    Toxic Torts

    A toxic tort is a tort caused by contact with a toxic substance. Because of the "advances" of corporate industry, the number of dangerous, toxic substances in our environment has grown immeasurably.

    Some of the toxic substances that have been shown to cause significant injury to people are:

    • lead-based paint (brain damage, especially in children);
    • asbestos (lung cancer, restrictive lung disease);
    • dry cleaning and other solvents (brain damage, major organ damage);
    • pesticides such as dioxin and DDT (birth injuries);
    • electro-magnetic fields from utility wires or major appliances (suspected cancer);
    • toxic landfill waste (leukemia, other syndromes);
    • various drugs and pharmaceuticals such as DES and tainted L-tryptophan;
    • common industrial chemicals such as benzene and PCBs;
    • heavy metals and other chemicals such as mercury and arsenic.

    What if my accident claim is too small to hire a personal injury lawyer?

    Studies have shown that approximately 60% of accident victims settle with the insurance company without using a personal injury lawyer. Are these people saving money in legal fees or losing money by settling for less than they have to?

    No one can negotiate a fair settlement if they don't understand the process and have no idea what their claim is really worth! What do you do when:

    • Meeting with the Insurance company;
    • Seeing your doctor;
    • Getting your expenses paid;
    • Settling your claim?

    No one would argue that on a small claim of say $15,000 that you hire a lawyer to do all the negotiating and all other work for you. If you did this then all your settlement would go to legal fees.

    There is a happy alternative that will give you the peace of mind that you have done the right thing; get you the highest settlement on your claim and keep your legal costs at a minumum.

    If you think your claim is a small one we suggest you contact a personal injury lawyer and hire him or her to give you:

  • an opinion as to what the claim is worth;
  • an outline of the steps you should take to negotiate a fair settlement.

    This opinion should cost you a few hundred dollars and may have to be paid "up front". Ask the lawyer before the meeting how much this will cost and whether they can do it for a flat fee rather than at an hourly billing rate.
  • When you meet with the lawyer be organized. Have your facts at hand and pertinent documents available. Refer to our page on Dealing With Lawyers.

    If you do this you will accomplish the following:

  • Achieve the highest possible settlement, after considering the small fee paid for the legal opinion;
  • Find out how to deal with the various stages of the process;
  • Have the satisfaction and peace of mind that comes with knowing you have done all the right things.

  • Professional Malpractice or Negligence

    There are many types of professional malpractice or negligence. Any profession may be held to a reasonable professional standard for their work and their advice:

    • Accountants, can cause great harm and damage financially through bookkeeping negligence or erroneous tax preparation.
    • Architects' plans may be faulty, causing property loss and financial harm.
    • Surveyors' errors may be costly to correct and may prevent the resale of private property.
    • Medical or legal negligence occurs through unreasonable negligence or,
    • failure to provide the expected standard of care.
    • Medical or legal malpractice may involve criminal negligence, malicious intention or strict liability.

    When a doctor or health care professional agrees to diagnose or treat a patient, he or she has assumed a duty of care toward that patient. The health care provider may be the doctor, nurse or a member of the staff or It is possible that the individual is a lab or x-ray technician with certain qualifications for operating advanced medical equipment or interpreting results of tests.

    Similar standards apply to a lawyer who has agreed to represent someone. In such an instance, the duty of representation is assumed and a standard of the profession is expected.

    A facility or company may also be liable for malpractice. Many times, a hospital, an ambulance company, a pharmacy or a nursing home will be subject to tort law - even a class action lawsuit.

    Some examples of medical malpractice or negligence are misdiagnoses which result in delayed or inappropriate treatment. Lifelong disabilities can result from negligent surgical treatment, dangerous delivery procedures for newborns and/or incorrect and sometimes deadly prescriptions.

    Slander, Libel and Defamation of Character

    We have a separate page covering this topic.

    Legal Fees

    A lawyer will not usually charge for the first half-hour consultation. If the lawyer wishes to take on your case, he or she may either charge you by the hour, charge a fixed fee, or charge by way of a contingency fee.

    Contingency fees are very common in tort law. When a lawyer works on a contingency fee basis he or she collects a percentage of what you eventually receive. If you do not receive anything under a contingency fee arrangement, then neither does your lawyer. It is common that the client must still pay for matters such as medical reports, court filing fees, and witness fees.

      

    Links to more Information

    Canadian Internet Law Resource Page : Torts
    Maintained by Professor Michael Geist of the University of Ottawa Law School, this site provides coverage of, among other topics, tort law.

    Economica Ltd.
    Includes numerous articles relating to the economics of personal injury damages.

    Find us at Google + https://plus.google.com/+EarlSands/posts?rel=author

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