What to do if you are involved in a motor vehicle accident?
When you are involved in an automobile accident, you must protect yourself and your interests. Below sets out what you should do when you are involved in a motor vehicle accident:
- Call the police
- Do your best to take record of what happened; photos if possible (Your cell phone camera is fine)
- Get the other driver’s insurance and driver’s license information
- Report the accident to your insurance company
- Seek medical attention
- Keep all accident related documents and information together
- Protect your rights - speak to a lawyer
The 2 parts to a motor vehicle accident claim
1) Tort Claim
“Tort” is derived from the Latin word for “wrong.” When you are not at fault for a motor vehicle accident you are involved in, you can sue the at fault driver or party for injuries and damages resulting from the motor vehicle accident. The insurer of the person or entity being sued typically responds to and defends the claim. In cases where the at-fault party is uninsured, the not-at-fault party’s own insurance company may respond to the claim. The purpose of a tort claim is to respond to a civil wrong (as opposed to a criminal wrong) and to restore the injured person to the position they would have been in had the accident not occurred, as best as money can do. Tort claims are intended to compensate the injured person for the pain and suffering they endured as a result of their accident related injuries. Tort claims can also provide compensation for lost income as well as lost ability to earn an income in the future, out of pocket expenses that were incurred as a direct result of the accident, and reasonable expected future expenses, including future medical care.
In Ontario, in order to receive any compensation for your pain and suffering in motor vehicle accident cases, you must establish that your injuries meet a certain threshold, which is defined in the Insurance Act as a permanent and serious impairment of an important physical, mental or psychological function or a serious and permanent disfigurement.
If your injuries are found to meet the threshold your claims for pain and suffering will be subject to a deductible in excess of $36,000.00 if the court assesses your damages for pain and suffering at less than $136,000.00. The deductible is adjusted for inflation. If your damages for pain and suffering are assessed at more than $136,000.00, then the deductible will not apply. The deductible and monetary threshold increase each year with inflation.
The threshold and deducible only apply to damages for pain and suffering and medical or other health related expenses. They do not apply to special damages such of income loss and out of pocket expenses.
2) Accident Benefits
Accident benefits are statutory benefits available to persons injured by the use or operation of a motor vehicle regardless of fault. Depending on the situation, the injured person’s own motor vehicle insurance policy or that of the owner of the vehicle they were travelling in or the owner of the vehicle that hit them as a pedestrian or cyclist may respond to the claims. Accident benefits are governed by the Statutory Accident Benefits Schedule (SABS), which is a regulation made pursuant to the Insurance Act. Accident benefits are intended to provide immediate compensation to injured persons while the tort claim is ongoing, which can sometimes take years. Depending on the policy and premiums paid, these benefits can include; income replacement benefits, non-earner benefits, caregiver benefits, housekeeping benefits, attendant care benefits as well as medical benefits.
Recent changes to the SABS have reduced the amount of accident benefits available to injured persons. Additional optional benefits can be purchased to maximize one’s coverage for additional premiums. The additional optional coverage must be purchased before an accident occurs.
Cases Where there is No Insurance Available
In some instances, including some cyclist and/or pedestrian knockdowns, there may not be any motor vehicle insurance policy available to respond to an injured party’s claims for either tort or accident benefits. Such an injured person may still be able to claim benefits from a governmentally-backed entity, the Motor Vehicle Accident Claims Fund (MVAC Fund).
In any case, the current legislation is complex and can be difficult to understand. A failure to properly take certain steps can disentitle, or obstruct a legitimate claim. To protect you and your interests call us today to discuss what you may be entitled to receive.