A serious personal injury can substantially impact someone’s financial circumstances and their ability to earn an income. Therefore, pursuing monetary compensation through a personal injury claim can greatly impact an individual’s rehabilitation and recovery moving forward. It is impossible to know exactly how much someone’s claim is worth, and the below factors will not apply to every case. However, when quantifying a settlement demand, various factors may affect the amount of compensation that can be recovered.
In part one of this series, we reviewed various types of damages which may be sought in a personal injury claim. In this article, we will examine a variety of factors which may affect the amount of compensation awarded to a plaintiff.
Factors Considered by Lawyers and Courts
At the outset of a personal injury claim, an experienced personal injury lawyer will assess the case and continue to assess the facts as the claim progresses to provide realistic expectations about the potential outcomes. A lawyer will help build a strong case on a plaintiff’s behalf. However, there are factors beyond their control which can impact a claim’s value. The below non-exhaustive list of factors may become relevant anywhere from the date of the accident to the time of settlement or trial:
Type and Severity of Injuries
Suppose you have been injured due to someone else’s negligence. In that case, the type of injuries sustained and the severity of those injuries will largely impact the amount of compensation awarded, particularly under general damages. For example, a serious injury, such as a traumatic brain injury or spinal cord injury, will likely be awarded greater damages than a minor or soft tissue injury, such as whiplash or a strain. Unfortunately, the more severe an individual’s injuries are, the longer the case will take to resolve.
Applicable legislation may impact or limit the amount of compensation awarded. For example, if a car accident injury falls within the definition of “minor injury” under the Alberta Minor Injury Regulation, the amount of compensation awarded may be capped.
Plaintiff’s Duty to Mitigate
A defendant in a personal injury claim may argue that a plaintiff has failed to mitigate their injuries. Failure to mitigate is based on the idea that a plaintiff has not taken reasonable steps to minimize the effect of their injuries. Therefore, the defendant should not be responsible for losses which the plaintiff could have reasonably avoided. If a court accepts that a plaintiff has failed to mitigate their injuries, their entitlement to damages may be reduced. For example, a plaintiff who fails to follow medical recommendations or receive prescribed treatment and consequently suffers a prolonged recovery time that prevents them from returning to work sooner could be found to have failed to mitigate his or her injuries.
However, suppose a Defendant advances this defence. In that case, they will be required to establish, on the balance of probabilities, that the plaintiff failed to take reasonable steps to mitigate. That failure contributed to their ongoing injuries. In the case of Forsberg v. Naidoo, the Court of Queen’s Bench held that when assessing an argument of a failure to mitigate, the choices the plaintiff made are to be assessed against the knowledge that the plaintiff had at the time. The benefit of hindsight is not relevant in these assessments, and the plaintiff is not expected to undertake significant inconvenience, expense or risk in attempting to mitigate their injuries.
Contributory negligence may be found if a plaintiff contributed to, or shared in, the fault of the accident resulting in the injury. An experienced personal injury lawyer will help determine whether an individual has contributed to, or is liable for, any of the injuries sustained and can provide a plaintiff with possible outcomes of their case. If a plaintiff is found to have shared in the liability of the accident, compensation may be reduced.
Examples of contributory negligence can include not wearing a seatbelt in an accident, a pedestrian not looking before crossing the road, or a motorcycle driver not wearing a helmet.
Duration of Disability and Prospect of Recovery
Suppose someone has suffered a permanent injury or is expected to have a long-term disability. In that case, it is likely that they will be awarded higher compensation to account for prolonged pain and suffering, loss of housekeeping services, loss of income, and costs associated with future care requirements such as medical expenses, prescriptions, or mobility aids. Individuals whose injuries do not result in permanent impairment and have a shorter recovery time will likely be able to resume employment and engage in their pre-accident activities after some time.
The Personal Injury Lawyers at Cuming & Gillespie in Calgary Work to Recover Maximum Compensation for Injured Plaintiffs
After sustaining an injury as a result of a car accident, slip and fall or truck accident, it can be confusing to know what to do next. The trusted personal injury lawyers at Cuming & Gillespie act quickly to collect evidence and advocate on your behalf so that you can prioritize your health and recovery. We know how important timing is when pursuing a personal injury claim, which is why we guide clients through the claims process to ensure that deadlines are met and clients’ interests are preserved. To speak with one of our lawyers about your personal injury claim and find out how we can help, call us at 403-571-0555 or contact us online.