In a society where we have established a system of insurance for the purpose of protecting citizens against loss and compensating accident victims there are a number of challenges which warrant consideration. As a lawyer who works to get money for people who have been hurt in accidents to help them put their lives back together I find myself having to explain these challenges again and again to my clients to help them understand why I am recommending that they accept settlement offers.
The most difficult part of the task is to explain to clients how our system attempts to quantify damages for pain and suffering which are not easily quantifiable. At the end of the day we are trying to tell people how much money they should suffer for the pain that they have experienced. This is a complicated task, not only because it is difficult to put a price tag on personal suffering but also because there has to be a balance which reflects the realities that insurance companies are funded by insurance premiums (i.e. insurance companies don’t have endless money) and that many people hurt in accidents believe that no amount of money can compensate them for what they have been through or the things that they can no longer do.
These conflicts are resolved primarily through two structural mechanisms. The first is government oversight which attempts to manage the conduct of insurance companies in the market place, i.e. , by regulating the amount of money insurers can charge consumers for insurance premiums and by mandating minimum coverage requirements and regulating other aspects of the insurance business. The second mechanism is provided through the courts who over time has created a body of case law based on the circumstances of individual cases which sets out ranges of damage awards for various types of cases and various types of injuries. The final safeguard is of course provided by having our damage assessments ultimately overseen by the civiil jury system.
The government at the behest of the insurers and in an effort to keep automobile insurance affordable has imposed caps on recovery for pain and suffering. The most significant cap is a $30,000 deductible created to reduce the obligations of the insurer by allowing them to avoid paying the first $30,000 of damages caused by their insureds. This is significant enough that it may wipe out claims of people who have been really hurt in car accidents especially in cases where there is no wage loss component, i.e. retired people, stay at home parents, students.
The courts have in addition to creating precedents which limit recovery have developed a process which is sufficiently cumbersome it provides no immediate access to a judicial hearing. It can literally take years for a matter to proceed to a trial and during this period of time the client’s life is on hold and the client is involved in an adversarial litigation process which can be very stressful. The inherent delays in the court system must be considered in the context of time being worth money as well.
A personal injury trial is an adversarial procedure. The civil burden of proof rests with the Plaintiff, the insured party must prove his or her case and specifically their damages. There is an obligation as well on the Plaintiff to take reasonable steps to try and reduce their own damages i.e. receive recommended treatment, try other jobs etc. At a trial the exercise goes beyond determining the facts of the case and determining a damage amount from similar cases – the jury must consider the credibility of the Plaintiff. and this is in the face of the defendant insurer using a number of strategies to discredit the credibility of the Plaintiff. These strategies can include surveillance, defence medicals etc., in an effort to convince the jury that the Plaintiff’s injuries are less severe than the Plaintiff claims or that the damages are being exaggerated. The ultimate assessment of damages is made by 6 citizens who do not personally know the Plaintiff and who must decide to what extent they believe the plaintiff and to determine how much the Plaintiff should be awarded in terms of damages.
My job at the end of the day involves trying to get my clients who have been hurt in accidents a reasonable sum of money as quickly as possible so that they can get on with their lives. This is not be confused with a fair amount of money, but rather a reasonable amount of money taking into consideration the various parameters which must factor in time, stress and limits imposed by the government on compensation. This is because money cannot provide adequate compensation for pain and permanent limitations, BUT money can buy things that will allow persons hurt in collisions to move forward and buy goods and services which will improve their recovery and help them reduce their losses. Often settlement money is used by clients for retraining.
Lisa Morell Kelly
Morell Kelly Personal Injury Law
515 Park Road North
Brantford, Ontario N3R 7K8 (519) 720-0110