Car Accident Victim nets 140K in compensation.

Nurse nets 140k in damages for car accident related injuries

Ms. Guzman was a licensed practical nurse when she was involved in a car accident on April 26, 2011. She was t-boned by a driver that ran a red light. She was alone in her car and wearing her seatbelt at the time of her car accident. She was taken by the ambulance to the hospital and released a few hours later.  car accident emergency crewMs. Guzman testified at her trial that she suffered injuries to her neck, left upper shoulder, left elbow, right forearm, and both of her lower legs in the car accident. What was primarily in dispute was the accuracy ever complained of ongoing pain and discomfort and the extent to which the injuries have affected her ability to work.

At the time of the accident Ms. Guzman was 53 years old, single ended not have any dependents. She lived with her younger sister who is employed as a care worker. She enjoyed cooking, working, socializing with friends and various other social activities. She described that the car accident has had interfered with her work and personal life. She was off work after the car accident for approximately 10 months. She then returned on a gradual return to work program and resume full-time employment. She testified that although she return to full-time work she found that the work was much more difficult than it was prior to her car accident. She no longer had the energy to do many of the things she used to do both at and away from work. She attended rehabilitation therapy for several years until she reached the plateau. She remained anxious about driving and being involved in other car accidents.

Various of friends, coworkers and doctors testified in this case. Most testified that Ms. Guzman no longer display the same energy and enthusiasm for work and happiness for life as she did prior to the car accident.

Various doctors testified that there was a risk that Ms. Guzman would not be a will to continue in her capacity as a nurse for the balance of her work life. Some physicians agreed that it was too early to say definitely as the remained a chance of further improvement.

Recommendations were made that included ongoing physiotherapy, massage therapy, and acupuncture. Psychological counseling was also recommended.

Car Accident Injury Award

The court explained the purpose of non-pecuniary general damages in it’s decision. These damages are intended to compensate the plaintiff’s pain, suffering, and loss of enjoyment of life as a result of the car accident. The award, as the court explained, was to compensate the plaintiff for the damages they suffered up to the date of trial and for the damages will suffer into the future. There are factors to be considered when awarding non-pecuniary general damages such as (no-nexhaustively) the age of the plaintiff, the nature of the injury, severity and duration of the pain, the degree of disability, the impairment family, marital, and social relationships and loss of lifestyle. It is also influenced by the individual plaintiff’s personal experiences in dealing with injuries and their consequence. The judge in this case found that a fair and reasonable award of compensation for pain and suffering in this car accident case was $50,000.

The court also explored a past economic loss. Past economic loss is to compensate the plaintiff for what he or she actually lost as a result of the car accident. In this case, Ms.Guzman had to use time from her sick bank. The judge found that to only compensate her for the net amount of her sick bank time would result in deductions being taken from her twice – now and then later when she used them in the future. This is because when she does use replenish sick bank time, she will have income tax and other deductions taken from her by her employer and would only receive the net income amount. The judge awarded past wage loss in the amount of nearly $46,000.

The court also considered future wage loss and the loss of future earning capacity. A claim for future loss of earning capacity, as the court explained, raised two key questions. Number one, whether or not the  plaintiff’s earning capacity had been impaired by his or her injuries caused in the car accident and number two, what compensation should be awarded for the financial harm that will accrue over time as a result. The essential task of the court is to compare the likelihood that the plaintiff’s future working life (that she would have had, had the accident not occurred) to the working life and losses that she may reasonably sustain as a result of the car accident. This is a matter of judgment based on the evidence and is not a pure mathematical calculation. The court noted that the appropriate means of assessment will vary from case to case.  The judge found that the plaintiff had proven on a real and substantial possibility basis that her income capacity was impaired by the car accident and awarded her $20,000 in past losses.

The court also explored a claim for future care costs as a result of the car accident. Future care is compensation for the cost of care that somebody would incur in the future as a result of their car accident injuries. The court found that a fair and reasonable award for future care for rehabilitation as well as some counseling was $16,000.

The court also looked at special damages. In this case these were mainly out-of-pocket expenses. The court awarded $6500 to reimburse her for physiotherapy and massage paid out-of-pocket. In total, this car accident victim was awarded $130,000.

If you have been in a car accident you have rights. Unfortunately our Ontario car accident laws place strict timelines on various applications and processes that an injured victim can make. Please talk to one of our lawyers and learn what your rights of recovery may be if you or a loved one has been seriously injured in a car accident. We specialize in complex and critical personal injury law and would be pleased to explain your rights to you at no obligation.

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Wrongful Dismissal: Does an Employee’s Age Matter?

Wrongful dismissal-does age matter? The answer is yes, of course it does. The age of the terminated employee is always an important variable in the calculation of severance. Our courts of told us that an older employee will often have a difficult time obtaining alternate employment and therefore considerable weight will be given to the age of the employee.

Construction Workers
Wrongful Dismissal: Does Age Matter?

In the case of Law v. Canada the Supreme Court of Canada said the following: “The increasing difficulty with which one can find and maintain employment as one grows older is a matter of which a court may appropriately take judicial notice. Indeed, this court is often recognized age is a factor in the context of labor force attachment and detachment.” The court went on to say, and referencing another case,”barring specific skills, it is generally known to persons over 45 have more difficulty finding work than others. They do not have the flexibility of the young, a disadvantage often accentuated by the fact that the latter are frequently more recently trained in the more modern skills.”

In the case of Iqbal Sahota v. Western Fibres Limited  a 48 year old plaintiff had word for the defendant company for 20 years. In awarding the plaintiff employee 14 months notice he referenced his age, saying that there is a connection between the employee’s age and the attainment of the primary objectives of notice.  This is not a new or radical concept.  In Law v. Canada (Minister of Employment and Immigration), [1999] S.C.J. No. 12  Iacobucci J., writing for the court,  acknowledged that judicial notice of the connection between an employee’s age and his/her ability to find alternate suitable work provides the juristic basis for the role played by an employee’s age when determining what constitutes reasonable notice.  Mr. Justice Iacobucci, citing the 1990 decision of the Supreme Court of Canada in McKinney, said the Court has often recognized age as a factor in the context of labour force attachment and detachment.

However, it is important to note that while age is an important factor in determining severance, an employee not being in his or her advanced years will not necessarily militate against a very significant notice. If other relevant variables for the calculation of reasonable notice are present.
 

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Should your severance or reasonable notice be reduced because you got another job?

wrongful dismissal photoThis is a question that I often get asked in severance package review meetings. The answer is that your statutory severance (under the employment standards act) will never be reduced if you are terminated without cause but your common law reasonable notice maybe can be. Numerous contracts of termination include a so-called “balloon clause” which includes a separation payment that will be paid to you in the event that you find another job.  Normally what is included (or what I include when I draft termination precedents) is that you will be paid 50% of the remainder of your severance if you find another job. For example, if you are paid 12 months notice and six months into your notice you end up finding another job then you will be paid the remainder three months notice normally in lump sum. This is incentive for you to find another job and double up on your income as well as incentive for your former employer to pay less severance to you and get you off the books.

If there is no balloon clause in your termination contract then term of reasonable notice (common law part of your severance) should not be reduced simply because you obtain new employment after dismissal. Damages do not stop because you have found alternate employment within the reasonable notice. This is been set out in numerous cases such as Schumacher v. TD Bank and Meyer v. Jim Pattinson industries Limited.  Reasonableness of notice is determined at the date of your termination – the point at which your entitlement to notice arises. The efforts of the employee to obtain alternate employment are more properly related to the question of mitigation, and should be addressed in calculating the actual damages versus damages thereafter. In short, the severance paid to you is calculated when you’re terminated and once that severance is agreed to by both parties is to be paid no matter if you find another job.

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I am injured and I keep hearing the term “general damages.” What the heck is this?

Pain and Suffering Compensation Simply Defined by Oakville Lawyers

Heard your lawyer throw around this term? Read it online? General Damages sounds pretty boring – or general but it’s actually the money paid to you as compensation. Damages by definition is essentially the same as compensation. A leading legal dictionary defines “damages” as “every person who suffers detriment from the unlawful act or omission of another may recover from the person in fault a compensation therefor in money, which is called “damages.”

Non-pecuniary simply means an imprecise assessment of how much money is appropriate to compensate. Unlike your loss of income that can be calculated to the lost dollar, or your out-of-pocket expenses – that can be calculated precisely,non-pecuniary general damages cannot.

Non-pecuniary damages are essentially intended to compensate you for your pain, suffering and loss of enjoyment of life and of amenities experienced as a result of the defendant’s negligence.  They are meant to compensate for such damages suffered to the date of trial and those that you will suffer into the future.

How are these General Damages calculated?

injured man on coastIn calculating general damages our courts have told us that an award should be fair and reasonable for both parties as those concepts are measured against the adverse impact of the particular injuries on the particular plaintiff: Hunt v. Ugre.  While fairness is assessed by reference to awards made in comparable cases, because each case is decided on its own unique facts and calls for an individualized assessment, it is neither possible nor desirable to develop a “tariff”.  The process is one of assessment and is not amenable to mathematical precision.

The Judge in the case of  Stapley v. Hejslet set out a non-exhaustive list of factors to be considered in awarding damages under this head.

They include: the plaintiff’s age; the nature of the injury; the severity and duration of the pain; disability; emotional suffering; loss or impairment of life; impairment of family, marital and social relationships; impairment of physical and mental abilities; loss of lifestyle; and the plaintiff’s stoicism.

For more questions please do not hesitate to contact us.

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What happens if you or a loved one is injured and can’t work?

The family breadwinner is injured and cannot work because of injuries caused in accident– what happens?

frustrated and sad female
Injuries and Job Loss – Oakville Lawyers can help.

An accident happens – be it a slip and fall, a car accident, a motorcycle accident or whatever kind of accident – and the breadwinner of the family is critically injured and cannot work. Cash flow stops coming in every two weeks.  Money tightens.  There is a family to support.  There are kids to feed, car leases and a mortgage to pay.  What do you do?

This is the first question that we are often asked by family members of injured victims. Loss of income is a grave concern. We are bread to work, to contribute to society, to make money and to support ourselves and our family. When the cycle is stopped – anxiety often sets into the surviving or non-injured family members.

The first and most important thing to do is to obviously turn to any disability policies that may be available. Contact your loved one’s HR department and get the appropriate forms filled out and submitted as soon as possible. Second – look for any top ups, such as income replacement benefits or a private disability policy that stacks.  If you or your loved one is injured in a car accident then he/she has the right to loss of income through your own insurer regardless of fault (There are some criteria such as your loved one must be at least 16 years old, was self-employed or employed at the time of the accident and must suffer a substantial inability to perform the essential tasks of that employment, was employed for at least 26 weeks during the 52 weeks before the accident –  you can read more here)  The amount you can receive is normally 70% of you or your loved one’s gross weekly income, up to $400.00 unless optional benefits were purchased.

How is loss of income dealt with during your lawsuit against an at-fault driver?

Your or your loved one’s inability to work and make money is normally addressed within a section or head of “damages”  called pecuniary losses.  Pecuniary means relating to, or consisting of money  and pecuniary damages are losses which can be quantified in monetary terms. Our Supreme Court of Canada said this:

 But where pecuniary damages are at issue, it is the actual pecuniary loss sustained by the plaintiff which governs the amount of the award. (Ratych v. Bloomer, [1990] 1 S.C.R. 940 at 962-963).

When we represent an injured victim, how do we recover income loss, or wage loss for that injured person and their family?

There are two things we start with – one is called pre-trial or past income loss and the other is called future income loss.  The trial or settlement date is the divider between your past and future income loss. Future losses need not correspond with pre-trial losses. The two heads of damages measure different kinds of loss and are based on different considerations. The assessment of future loss of earning capacity relies on predictions of the future which might or might not bear any relation to those disabilities that led to past loss of earnings.   This was explained in the case  of Cipriano v. Cipriano (1996), 22 B.C.L.R. (3d) 148 when a plaintiff’s fibromyalgia did not causing any pre-trial loss of wages but threatened a plaintiff’s future ability to work.

Future Income Loss because of injures – how is it figured out?

Depending on the jurisdiction future income loss can be further subdivided or sub-categorized  into claims for  “loss of competitive advantage”, “future diminution of income”, “future income loss”, “loss of earning capacity” “loss of economic opportunity” (you can be entitled to damages for a related loss of opportunity, such as a delay in graduating from university) or “loss of earnings”. All of theses describe ways in which to calculate the amount needed to restore the injured party to his or her position had the injuries not occurred.

Sometimes claims for loss of competitive advantage may be in addition, may include or be made instead of a loss of future income claim.For example, in the case of Branch v. Martini, [1998] O.J. No. 2474 (G.D.) (QL)  a plaintiff truck driver/labourer was awarded $65,000 for loss of competitive advantage for having to accept less physically demanding employment in the future and was now more marginalized than before the accident. In the case of Bezusko v. Waterfall, [1997], O.J. No. 4693 (G.D.)(QL) a business owner plaintiff was separately awarded loss of competitive advantage for his loss of ability to create value carrying out construction work of its business or improve assets to its property.

What are some basic rules in formulating a claim for you or your loved one’s future income loss?

The first is understanding what you need to prove in a lawsuit. In a criminal case a prosecutor to establish a case beyond a reasonable doubt. In a civil case or a lawsuit you need to prove your case on a balance of probabilities i.e. “more likely than not.” But there are exceptions to this in certain circumstances.  When proving income loss one only needs to prove that there is a reasonable, as distinct from speculative, possibility of such a loss. Even if no basis has been presented for computing loss of future earning capacity, an award must be calculated which is considered fair and reasonable to an injured party. 

When estimating income following an injury we must look at things such as the post-injury career path of the person, the selection of the appropriate earning data to “forecast” a post-injury career path, the assessment of appropriate positive and negative labour market contingencies (i.e. the  likelihood of promotion, obtaining more remunerative work, unemployment, illness, early retirement and on-the-job accidents) the retirement age and the impact of the injury on earnings and labour force statistics.  It is also important to know that in proving the loss you are not required to cover every possible occupation that might be available: you need only present occupations for which you are reasonably suited by background, age and experience and for which you might reasonably be retrained.

Once these factors are taken into an account a proper loss of income claim can be formulated to support your claim.

What about specific or special income loss situations?

Each case is obviously different and there is an enormous body of law that deals with many different specific situations. For example an injured plaintiff is entitled to damages for loss of earning capacity whether that capacity involves wages or unconventional earnings – such as doing the work of a bartender or exotic dancer.

What about an injured child? The process of quantifying a child’s lost earning capacity is quite speculative. Statistical evidence of an adult’s average earnings( like a parent) may be used to assess a child’s lost earning capacity. The court may infer from the plaintiff child’s  family background what level of education he or she would have attained apart from the injury. If a plaintiff is a bit older, such as a teenager or student, then he or she must must establish a reasonable possibility of pursuing a particular career path if damages are to be assessed on that basis. Where the court considers that such evidence is not sufficient, only nominal damages will be awarded. One can’t create a fictional or unattainable opportunity in an effort to build a claim.

As you can see there are many variables in assessing how to replace an injured one’s lost income. If you or a loved one has been injured then you should consult an Oakville lawyer to discuss your particular situation.

We are injury and employment lawyers in Oakville Ontario and services from Toronto to the Niagara areas.
 

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