We have noticed that certain types of cases are getting harder to settle early on in the litigation process. Especially in auto accident cases, insurers are getting tougher to deal with and are requiring more medical evidence that our clients’ claims meet the legal threshold to sue.
Remember, to successfully sue for pain and suffering in Ontario you have to have a “serious” and “permanent” injury. Building your case to surpass this threshold is not always easy. There is no single test you have to meet.
Courts have stated that the requirement that the impairment be “serious” may be satisfied even although the injured person resumes employment and household duties, but continues to experience pain. The courts will consider whether the continuing pain seriously affects the person’s enjoyment of life, ability to socialize with others, have intimate relations, enjoy his or her children and engage in recreational pursuits.
Courts have stated that for the impairment to be “permanent” , there needs to be evidence that it will last indefinitely into the future, as opposed to a limited time with a definite end. If a limitation is unlikely to improve for the indefinite future, it will likely be “permanent”.
However, the onus is on the injured person to prove that the injury is serious and permanent. Please keep track of facts that will help you prove the serious and permanent nature of your injury. You may not remember the party you skipped, the wedding you left early and the movie invitation you declined due to your injury if you don’t make little notes of these things. These days, the details are key to successfully advancing your case to settlement or judgment.
Ultimately, stricter requirements from insurers mean that in most cases, we will be requesting that doctors and other health care professionals provide written opinions that your injuries are serious and permanent. You will want to ensure that your health care team is aware of your ongoing issues so that they can provide a fulsome opinion if we request.