In a personal injury case, it is often in the interests of both parties to settle out of court. This will save both the plaintiff and defendant from a possibly lengthy and unpleasant court case.
Although an early settlement may sound like a good idea, it will not do you justice unless the plaintiff is fairly compensated. Any settlement offered must be adequate to cover the financial losses sustained and redress the suffering experienced by the plaintiff from their accident.
If you are considering bringing a personal injury claim but are put off by the possibility of an extended court case with further costs and time off work, you need to know what your options are, and we can help.
For more information on how to know when to settle a personal injury case, read our guide below.
Understanding Personal Injury Settlements
Personal injury cases are considered tort cases. In a tort case, the injured person (the plaintiff) will bring a claim that seeks compensation (damages) for the physical, psychological or cognitive injuries they sustained because of the tortious act (i.e. negligence, professional negligence, medical malpractice, product liability) of another person or entity (the defendant).
To put it simply, a personal injury settlement is an agreement whereby an insurance company for the defendant (at-fault party) and the plaintiff agree upon the payment of a sum of money to compensate the plaintiff and resolve the claim made against the defendant.
Once a claim is settled, the claim against the defendant and their insurance company will come to an end. Settlements are final and will negate the need for further court proceedings.
Types Of Personal Injury Claims
Personal injury cases cover a wide variety of circumstances, although car accidents are the top reason for personal injury claims.
Some examples of events that you could claim for are:
- A car accident – you can file a claim against the person who was at fault for the accident or the insurance company that should compensate you.
- Medical malpractice/ negligence – an inadequate level of medical care, the wrong medication, or a treatment mistake that leads to further health problems.
- Occupational injury – you can claim for injuries experienced in the course of your work duties/ on the work premises.
- Premise liability – if you were injured due to an accident on premises that were badly maintained, such as slipping and falling on a wet floor in a business or mall.
- Physical assault – this describes the physical assault on you by another party.
- Sexual abuse – sexual assault or molestation.
- Professional malpractice – the improper or negligent action of a professional with whom you engaged in the course of their duties. Examples include a financial advisor stealing money from you, a breach in an attorney-client relationship, or a therapist abusing a patient.
- Wrongful death – any of these or other situations that lead to the untimely death of a loved one.
How To Make A Personal Injury Claim
All injury cases in Ontario are brought to the Superior Court of Justice. If you are asking for less than $35,000 in compensation, you will likely present your case in a small claims court. If seeking more than $35,000 and up to $200,000, you must use the simplified procedure process https://www.ontario.ca/page/civil-claims-simplified-procedure and for cases seeking more than $200,000, you will bring a regular civil claim.
An experienced personal injury lawyer will help you decide on the best course of action after looking at the details of your claim. That is why your first step should be to consult a personal injury lawyer.
While it may be fine to bring a small claims court case without legal counsel, do not be tempted to proceed without legal counsel if seeking more than $35,000 in damages – especially in the case where an insurance company will be defending the at-fault party. They will have an experienced legal team defending your case, and it will be difficult to succeed with your case if you do not have the legal expertise required to build and present a successful personal injury case.
Your lawyer will be able to assist you right from the start in deciding whether or not you have a valid claim and how best to proceed. It is in their interest to fight for your interests, so be honest and communicative from the start.
Steps To Take
Once you hire a lawyer, they will gather information to support your claim. In some cases, your lawyer may seek to resolve the case early on with the insurance company. This will usually only happen in cases where the damages can be determined early on. For example, if a loved one has passed away due to an accident, the damages can often be determined fairly quickly.
If early settlement is not possible, your lawyer will issue a Statement of Claim in the appropriate branch of the court system to do so. They will then serve the claim on the defendants.
The defendants will file and serve a Statement of Defence. They will then seek discovery of productions relevant to your claim such as the police report, witness statements, medical records and tax returns. If you have advised your medical providers of all of your injuries and impairments from the accident, these will be contained in the medical records and may prompt the defendant to try and settle your claim.
A discovery session (examination for discovery in Canada and deposition in the USA) is the next step in the litigation. Essentially your lawyer will ask the defendant questions under oath. This will typically focus on trying to prove the defendant was at fault for your accident. The defendant’s lawyer will get the opportunity to ask you questions about your knowledge of how the accident happened and about, how the accident has changed your life, and what damages you have suffered. Your lawyer will prepare you before you are discovered. The evidence that you present in this early stage may sway the defendant to offer an early settlement.
Each side will continue to gather the evidence they need to support their case, and if the matter can’t be settled, it will eventually proceed to trial. Most personal injury cases do not go to trial.
Opportunity To Settle Early
Throughout this discovery process, there will be opportunities for settlement negotiations. For example, if the evidence is collected that supports a finding of liability against the defendant, this will often put pressure on the defendant to be reasonable and offer fair compensation.
It is often a good time to discuss settlement right after you have given evidence of the injuries and damages you sustained in the accident.
If such an offer is not made during this discovery and negotiation process, your lawyer will prepare the case to go to trial. But you can still reach a settlement after this stage.
As your case progresses, your lawyer will always look for opportunities to convince the defendant to settle out of court. For example, your lawyer may hire an expert doctor to assess your injuries and their impact on your life. Once served on the defendant, this may prompt the defendant to try and settle the claim.
When To Settle A Personal Injury Case
Each case is unique, and the decision of whether or not to settle depends on many factors.
In most cases, settlement is usually the best way to resolve a personal injury claim. Court proceedings are expensive and can be very stressful of the parties involved.
It can also take many years to get an injury claim to trial, and the average personal injury case can last for several weeks.
As the plaintiff, you also need to consider what the effect of a trial will be on your life.
A court case carries a fair amount of stress and will further delay your chances of returning to a normal life. But, this does not mean that you should settle for less than what you are entitled to.
If you want to spare yourself a long trial and a long wait for court-awarded compensation, you may decide to accept a settlement offer if and when it is presented. However, this must still be a reasonable settlement.
Another factor that determines when it is best to settle a personal injury case is how difficult it is to prove liability. If it’s difficult to prove liability for your claim, it will be harder to achieve a successful outcome at trial. As such, a settlement may be your best bet for receiving compensation.
Settling A Personal Injury Case Should Be In Your Interest
Understand that settling a personal injury claim should always be in your interests. Whether you have suffered due to someone else’s carelessness, a defamatory statement, or more serious harm, you will have experienced pain and suffering to some degree.
A settlement does not mean that the guilty party is “getting away” with anything or “getting off easy.” It simply offers you the opportunity to move on with your life sooner and with fair compensation for what you have had to endure.
It is common to feel the need to punish the defendant. But this can only cloud your judgment at a time when you dearly need to resolve your financial losses and other problems resulting from their actions.
Discuss this with your lawyer. They will help you to assess the situation objectively, and this will help you to make an informed decision.
How Long Does It Usually Take To Settle?
It can take anywhere from a year to five years to settle a personal injury case. However, most plaintiffs’ cases settle within 2 to 4 years of bringing a claim.
Most personal injury cases settle out of court before a trial is even scheduled. This can mean that a settlement is reached far sooner.
That being said, all personal injury claims are unique and therefore, it is impossible to give a concrete answer as to how long yours could take. In general, it is usually a good idea to only settle your claim once your injuries have stabilized. If you settle too early and your injuries worsen, you will not have been properly compensated.
Why Settling Is Beneficial For Both Parties
Settling is beneficial for you as the plaintiff when fair compensation is offered without the need to put yourself through the rigours of a lengthy court battle.
As for the defendant, long, drawn-out cases are expensive and bad for business. They would usually much rather settle out of court and avoid the bad press. Once again, this depends largely on the circumstances of your particular case.
If, however, the defendant refuses to settle out of court or does not make a fair settlement offer, you should proceed with court proceedings to ensure that justice is served.
What Is A Good Settlement Offer?
A settlement offer should be fair and reasonable relevant to what you experienced as a result of the defendant’s action (or inaction).
A fair settlement will cover most of the financial losses you have suffered since the accident and the losses that you may continue to suffer into the future and it should also redress the pain and suffering you have suffered because of the accident.
As each case is unique, your personal injury lawyer will help you determine if a settlement offer is good for you.
The Pain And Suffering Damages Cap
An area of personal injury cases where there is often much confusion is that of “pain and suffering” damages (general damages). Your pain and suffering are certainly relevant but are a separate factor from your financial suffering.
Pain and suffering cannot be as easily quantified as your actual expenses that resulted from the personal injury. Therefore the Canadian Supreme Court has capped the amount of damages that may be claimed for “pain and suffering”.
This amount is a maximum of about $390,000 but is periodically adjusted due to inflation. This measure was taken to prevent abuse of the system and in no way negates any harm that you suffered. It is quite rare for a pain and suffering award to approach the cap unless the injuries sustained in the accident are extremely severe.
This capped amount does not apply to your financial loss claims such as past and future care costs and income loss.
Whether you have suffered at the hands of a healthcare provider, a corporation, or an individual, you may have grounds for a personal injury case.
While taking your case to trial is always an option, settling your claim is usually a much faster and less stressful route to get the compensation you deserve.
Personal injury attorneys specialize in personal injury claims. They will best be able to advise you on when to settle a personal injury lawsuit. Contact us today for advice and a free case evaluation from experienced personal injury lawyers with total confidentiality.