Understanding the Concept of Emotional Distress

According to one of many legal dictionaries in Canada and the US, the basic definition of the term “emotional distress” is:

“a basis for damages claimed in a personal injury lawsuit

and based on the intentional or negligent acts of another.”

If you have recently sustained injures and have filed a personal injury lawsuit in the cities of Barrie, Orillia, or Stouffville, you may be entitled to compensation for your pain and suffering.  These damages may be are awarded in addition to economic or pecuniary damages such as lost wages, medical expenses, etc. that are directly attributed to the injuries you’ve sustained.

Components of an Emotional Distress Claim for Damages

An emotional distress claim may come in a number of different forms.  The term may be commonly referred to as:

  • emotional upset
  • intentional infliction of mental distress
  • negligent infliction of emotional distress
  • negligent infliction of psychiatric damage

Under Canadian personal injury law, the common element among these claims is that the complainant or plaintiff must establish the following two components in order for the claim to be valid:

    • First, the plaintiff suffered foreseeable psychological injury due to the negligent behavior or conduct of the defendant.
    • Second, the psychological injuries of the plaintiff were of such a serious nature that he or she succumbed to a well-documented psychiatric illness.Emotional distress can be very difficult to prove since there are no CT scans or X-rays that a professional can point to.  Conversely, physical injuries such as broken bones or head trauma can easily be identified with these medical technologies.

      Proving Emotional Distress

      If you and your Barrie, Orillia, or Stouffville personal injury lawyer intend to pursue an emotional distress claim, there are 5 ways in which proof can be established:

    • Duration – as with most cases involving traumatic stress, if your pain has persisted and occurred over a lengthy amount of time, it may be easier for you to prove emotional distress.
    • Intensity – the more intense your level of mental anguish is, the better your chances of proving emotional distress and being compensated for damages.
    • Physician’s note – make sure that your claims are supported by a physician’s or psychologist’s documentation of your condition. Your reports are a testament of the level and amount of injuries you sustained.
    • Related bodily injury – although proving emotional distress can oftentimes be difficult, you can usually provide proof of physical symptoms that are attributed to it such as headaches, ulcers, etc.
    • Underlying causes – the court will be more likely to find for emotional distress if the underlying cause is extreme such as surviving a bombing compared to a motor vehicle collision.

In order to prove your claim, you may have to incorporate several of these factors.  Just keep in mind that you should be working with an experienced personal injury lawyer as well as a physician and/or psychologist. This will help you get a better representation in court.

Making Your Personal Injury Settlement Offer – Part II

Adjusting the Value of Your Personal Injury Case

Once Barrie, Stouffville or Orillia personal injury lawyer has established what your personal injury claim is worth, adjustments will made by calculating the amount to reflect these factors:

  • Court and trial location – in Ontario Province, some venues are more conservative than others.  Consequently, settlements awarded in these areas tend to be much lower than what juries award in heavier populated, urban communities.  Whenever insurance adjusters are negotiating a settlement, they usually remember this factor.
  • Liability – if liability is established in your case, this could afford you a higher settlement amount.  However, if contributory negligence is a factor (in other words, you contributed to your injuries by virtue of your actions), then your settlement amount will be decreased based on you contributing to the fault.
  • Mitigating damages – whenever it is reasonably possible, the injury victim or plaintiff should try to reduce (mitigate) the damages in their case.  For instance, your medical expenses are higher because you did not get proper medical treatment after your accident.  Since you failed to get treated, your injuries are now harder to treat.  As a result, your claim’s value may be reduced due to failure to mitigate.
  • Multiple defendants – whenever there is more than one defendant in a personal injury case, there may be differences and issues with the amount of percentage of the total settlement amount that each one is responsible for paying.
  • Plaintiff characteristics – interestingly enough, the value of your settlement can easily be influenced by your own characteristics.  Factors that could possibly influence the final settlement amount include your age, like ability, occupation, past medical history, and so on.

A personal injury lawyer plays a significant role throughout this process.  Consequently, you should never attempt to handle your claim on your own and always rely on the experience and expertise of a personal injury lawyer to represent you and your case in Ontario.

Submitting Your Settlement Offer

At this point in the process, you and your lawyer are ready to submit your settlement offer.  A settlement demand letter will be submitted by your lawyer to the defendant and/or their insurer.  At this particular point in your case, it is not uncommon to see a lot of back-and-forth negotiations between you, your lawyer, and the defendant’s insurance company regarding what your case is worth in Barrie, Orillia, or Stouffville.

Until a settlement is reached, negotiations could be ongoing.  Naturally, the insurance company will try and settle as cheaply as possible.  After all, they are trying to protect their own interests and do not care about yours.  The reality here is that if a settlement cannot be reached, a judge and jury will be determining how much your damages are worth in court and it could take years to resolve your case as a result. It is best if your lawyer can find a price that can make the settlement faster so that you don’t have to undergo financial crisis.

Making Your Personal Injury Settlement Offer – Part I

Getting Started with a Personal Injury Lawyer

In Canadian personal injury law, any individual who is injured in an accident that has been caused by another person’s careless, negligent, or reckless behavior may be entitled to compensation for their losses.  While this is one of the more complex areas of Provincial Law, it goes without saying that an injury victim will want to sue for damages in court or settle their personal injury claim before their case goes to trial.  Statistics have clearly shown that over 90% of these cases typically settle out of court.

Your best Option

Resolving a personal injury claim in Barrie, Orillia, or Stouffville by virtue of a voluntary settlement on behalf of the defendant and their lawyer is realistically the most feasible option as jury trials can become extremely costly and tedious over time.  However, it is very difficult for your personal injury lawyer to determine the value of your case until several different factors have been brought to the forefront.  The first step to achieving a settlement in your case is that you seek medical attention.

Your physician will be able to determine the nature and extent of the injuries resulting from your accident and recommend the appropriate medical treatment and proper care during your recovery.  Once your personal injury lawyer has this information, he or she will most likely be able to assess the value of your case and determine what it’s worth.  At this point, you and your lawyer will begin the settlement process.  Remember, the primary aim of personal injury (tort) law is to provide financial relief to the victim.

Determining the Value of Your Case

There are a number of factors that a personal injury lawyer will take into account when trying to determine the value of your case.  In most instances, this comes down to a single word – damages – which are classified as “non-pecuniary” and “pecuniary.”  In some cases, non-pecuniary damages may also be referred to as non-economic or general damages.  These include:

  • embarrassment and humiliation
  • emotional distress
  • loss of companionship
  • loss of consortium
  • loss of reputation
  • loss of society
  • mental anguish and shock
  • physical pain and suffering

Depending on the severity of your injuries, non-pecuniary damages will range anywhere from 1.5 to 5 times that of pecuniary damages.  Pecuniary damages may be referred to as economic or special damages and typically include:

  • funeral and burial expenses
  • lost earning capacity
  • lost wages (past and future)
  • medical expenses
  • property damage

While establishing damages in a personal injury case in Barrie, Orillia, or Stouffville is part of the legal process, the burden of proof where liability and negligence is concerned rests on you and your lawyer’s shoulders.  This is where personal injury law can become extremely complex.

Part II will explain how the value of your claim is adjusted along with submitting your offer for a fair and reasonable settlement.

How You can help Your Personal Injury Lawyer in Your Case

Cities such as Barrie, Orillia, and Stouffville see their fair share of accidents on a daily basis.  In many cases, people sustain serious injuries because of someone else’s carelessness, negligence, or recklessness.  And when that happens, you should consider talking with an experienced personal injury lawyer in order to validate your claim and determine what your case may be worth.  Unfortunately, this isn’t always as easy as it sounds as the law governing personal injury claims is extremely complex.

If you have recently sustained serious injuries in a motor vehicle accident, slip and fall accident, or any other type of accident and you feel that the other company or person caused these circumstances, you may consider filing a personal injury claim.  However, it is imperative that you aware of and understand your rights under Provincial law.  This is especially important if you want to be compensated fairly and reasonably.  Plus, you only have so much time to file your claim and lawsuit.

Helping the lawyer

There are a number of things that you want to keep in mind prior to moving forward with your personal injury case in Barrie, Orillia, or Stouffville.  The following steps will be very helpful for your lawyer and his or her legal team as well as the effort they will invest in your case and getting you the compensation you are deserving of:

First and foremost, there are a number of factors involved in the assessment of your case and making your personal injury claim.  Among the primary considerations are factors such as the:

  • cause of your injuries
  • nature and extent of your injuries
  • impact of your injuries on the ability to perform your job
  • overall effect on your quality of life

Your claim will be valued based on your ability to show how long and to what extent you will continue suffering losses that have arisen from your injuries. It can be daily expenses, loss of wages or medical treatment bills that have to be paid.

Secondly, although there may be the occasional exception, you have a prescribed time limit in which you can file your personal injury claim which in most cases is 2 years.  The sooner your personal injury claim is filed and the sooner the defendant and his or her lawyer have been notified, the sooner you may be reimbursed for your damages.  This includes any and medical expenses that you’ve incurred. Keep the receipts, bills and any other proof that you have.

Third, be sure you are keeping track of every cent that is directly attributed to and spent on your injuries, whether you are spending the money or another member of your family is.  Be especially careful if you have filed your claim with an insurance company and document these expenses for medical care and rehabilitation as accurately as you possibly can.  Just remember, it won’t hurt to cover this with your personal injury lawyer.

For Getting Injured at the Workplace, Do I Need a Legal Counsel?

If you though getting compensation are easy after personal injury at work, it is a mistake. Although as per the rules, you need to notify the employer and the Workplace Safety and Insurance Board, there are medical examinations to complete before the compensation is disbursed. But reality is different, because you will need a lawyer to ensure that you get the compensation you deserve. If a vehicle is involved in the accident, matters get even more complicated. You get the choice between getting personal injury claim from your insurance company or WSIB compensation. As per the rules, after an injury, you are supposed to file a claim by:

  • Reporting the injuries to the employer or supervisor. Get first aid and if there are additional complications that develop, report them.
  • File your worker’s compensation claim with WSIB. If there is going to be loss of wages, the employer needs to file a claim. In case, there is a delay in reporting an injury claim.
  • You need medical examination and evaluation done by the doctor. The medical report will be reported to the WSIB as part of the claim filing.
  • Your case will be heard in the Workplace Safety and Insurance Appeals Tribunal.

However, the fact is that it is a tedious process with a host of documents to submit when you need to file for WSIB claim. The reality is that WSIB health care funds have been drastically reduced since 2009 and that has resulted in workers going back to work much earlier than what is medically advised. In addition, the number of claims being denied has risen. With the result, the process of appeal has become complex as workers navigate through the overloaded claim system. With more appeals that it can handle, injured workers might be left without compensation. That is precisely the reason that you need a lawyer by your side. There are many other complexities that have to be considered when the victim of the injuries is trying to get compensation. With plenty of laws and regulations to adhere to, it helps to have a good lawyer in your corner. They will understand all the legalities of pursuing a lawsuit.

An experienced personal injury lawyer can ensure that your case is heard under tort laws if needed or they can assist you with filing of the WSIB claim. Qualified lawyers can help you through the procedures and file in the paperwork. Additionally, if you are being pressurized to work without the injuries getting healed or are in a condition where it might be difficult, your personal injury lawyer can represent on your behalf. It is essential that you look for a personal injury attorney that has past experience in handling cases like yours. You can look online or get referrals at work or from colleagues. Get a free session and get your case evaluated.