Frequently Asked Questions For Personal Injury Claims In The Maritime Provinces
Q: I've been in a car accident. What do I do now?
Being involved in a motor vehicle accident can be scary. You may be confused about what to do and not know where to start. You may also be unsure of your rights and the coverage available to you. Here is a basic checklist to help you out. At the Scene of the Accident:
- First, determine if you or any passengers in your vehicle need medical attention. If so, call 911.
- Check the occupants of the other vehicle. If they need medical attention, call 911.
- Take pictures. If possible and safe, leave the vehicles where they are and try to get at least one picture of the collision scene.
- Report the accident to the police. If the property damage to the vehicles is over $2,000 or if anyone is injured you must report the accident. You should also report the accident if you are unsure as to who is at fault, or if there are suspicions as to whether there is a Motor Vehicle Act violation (for example, speeding or failure to yield) or Criminal Code charges (impaired driving or dangerous driving).
- Obtain the other driver’s contact and vehicle information. You should get the following details:
- The name of the other driver
- The other driver’s address
- The name of the owner of the car (if different than the driver)
- The owner’s address
- o The other driver’s insurance company and policy number
- The year, make and model of the other car
- The license plate number of the other vehicle
- If police are called, the name of the investigating officer and the accident report number
- Contact information of any witnesses
- Seek medical attention and/or treatment. In the event that you make an insurance claim, medical documentation of your injuries is necessary.
- Report the accident to your insurance company. A lot of people think that if the accident isn’t their fault, they don’t have to report it. Your insurance company must be notified of the accident to ensure you can access to your Section B benefits.
- Write out a statement of what happened in as much detail as possible. Overtime, memories fade and people forget details. Writing out what happened in your own words will ensure you capture as much information while memory is still fresh. Date this statement. Include a diagram if you find it helpful.
- If you are injured, call a lawyer. Even injuries that may appear minor can get worse with time and it is important to know the options available to you.
Q: What is the minor injury cap and will it affect my claim?
The minor injury cap in the province only applies to accidents where car insurance is involved. This cap does not apply to personal injury claims such as slip and falls, assaults, and injuries resulting from product defects. If you were in an accident between November 1, 2003 and April 27, 2010 and your injury is considered to be minor, you will fall within the cap. During this period, minor injuries are considered to be those that do not result in permanent serious disfigurement, impairment of an important bodily function or one that resolves within twelve months of the accident. If your accident occurred after April 27, 2010, the cap applies only to sprains, strains and certain types of whiplash injuries where there has been no affect on your employment or activities of daily living. To learn more about the minor injury cap and whether your injuries fall within the cap it is important to contact a lawyer.
Q: The insurance company told me my injuries are minor. Should I just accept what they are offering? Is it worth getting a lawyer?
If you are offered a settlement and uncomfortable with accepting it, it is best to call a lawyer and discuss your options. Our consultations will be free of charge.
Q: How much will I get for my injuries?
The answer to this question depends on a number of factors including the extent of your injuries, the amount of time you have had to miss from work and the impact the injuries have had on your life. Until these answers are known, it is impossible to determine an appropriate settlement amount.
Q: How much will it cost to bring a personal injury claim?
Our personal injury lawyers work on what is called a contingency fee basis. Essentially, the amount you pay depends on the amount of your settlement – it is a percentage of the settlement amount. If you don’t receive anything, you don’t pay anything. To learn more, or to request a copy of our Contingency Fee Agreement, please contact our office.
Q: How long will the process take?
This depends on a number of factors. First and foremost, you should never settle a claim until you know the full extent of your injuries. The best case scenario is that you fully recover and get back to the way you were prior to the accident. If you require ongoing treatment or will be off work long term, you need to know that in order to get the best settlement possible. You won’t know these answers until you give your injuries time to heal. Even after you have assessed your claim and sent the insurance company a demand for settlement, the process can be a long one. Negotiations can take time. It may be necessary to file a lawsuit and work through the Court process. Your lawyer will be able to give you an idea of what to expect going forward.
Q: How long do I have to make a claim?
In Nova Scotia, the limitation period in which to commence an action for personal injuries is two years as of September 1, 2015. The limitation period has recently changed. If you have been injured prior to September 1, 2015, it is best to call a lawyer to discuss the limitation period applicable to your case. In cases against the government, such as when you are in an accident involving a metro transit bus, the RCMP or if you slip and fall on government property, you have one year to bring a claim. Notice must be given two months prior to filing an action. For individuals under the age of 19 or who are temporarily unable to manage their own legal affairs, generally the limitation period begins to run at the age of 19 or when one is capable of managing their own affairs. However, pursuing a claim can still be done prior to the age of majority by appointment of a litigation guardian.
Q: What if I’ve been injured while at my place of employment?
If you are an employee injured while at work and the workplace is covered by the Workers’ Compensation, you must bring an action through Workers’ Compensation and not through the tort system. The Act is intended to create a comprehensive scheme for resolving workers’ compensation disputes and bars access to the courts.
Q: What if I am in a car accident and driving in the course of my employment?
If you are injured while driving in the course of your employment, the first thing to do is determine whether you are covered by Workers’ Compensation. If so, your claim is owned by WCB but you do have the option of pursing your claim with Workers’ Compensation, or opting out of WCB and pursuing a tort claim with legal counsel. If you chose to opt out of Workers’ Compensation benefits, you only have six months to do so. However, if you are hit by someone who was also driving while in the course of his/her employment, you must go through WCB.
Q: What happens if I’ve been in a car accident and can’t work?
If you have been in a car accident and are unable to work as a result of your injuries, there are a number of things you should do to minimize your lost income, including the following:
- You must first get a note from your doctor stating you cannot work as a result of the accident.
- If you are eligible, you must apply for Employment Insurance sick benefits. Even if you don’t think you are eligible, apply anyways. If you are not eligible, the insurance company will require documentation proving you were refused benefits.
- Your own insurance policy will help cover some of your lost wages. These are called Weekly Indemnity payments and are accessed through your Section B benefits. You must provide your insurance company with your completed Section B forms, the note from your doctor, and either the amount you are receiving from EI sick benefits, or the EI refusal letter. For other types of accidents, if you are unable to work, you will have to go through your short term private insurance policy or apply for employment insurance. If you do not qualify for these, you will have to wait until your claim resolves to recover for lost wages.
Q: What is an insurance adjuster?
The insurance adjuster is the insurance company’s representative who will be assigned to your claim.
Q: What is the difference between Section A and Section B car insurance?
Section A is the portion of your car insurance which covers you for any injury that occurs as a result of an accident for which you are not at fault. Section B is the portion of your policy that provides coverage for you and anyone in your vehicle who is injured, regardless of who is at fault.
Q: Will my car insurance rates increase if I have to use my Section B benefits?
No, your rates will not be affected by a Section B claim. Pursuant to section 3(1)(a) of the Automobile Insurance Rates and Risk-Classification Systems Regulations, an insurer is not permitted to include any claim resulting from an incident for which the insured was not at fault as a risk-classification factor when determining insurance rates.
Q: The other insurance company told me that they are going to close my file if I don’t accept their offer. What should I do?
The limitation period for personal injuries in Nova Scotia is currently two years from the date of the accident, so as long as you are within that time frame, the insurance company must respond. If you have been offered a settlement but are unsure whether it is a fair amount, it is best to speak with a lawyer.
Q: I’ve been in a car accident and the person who hit me doesn’t have insurance. What can I do?
If you are injured by an uninsured driver, you can make a claim through your own insurance policy. This portion of your policy is called your Section D policy and it is there to provide coverage in the event that you are hit by an uninsured or underinsured driver. You must notify your insurance company immediately if you have reason to believe the at-fault vehicle is uninsured or underinsured.
Q: What do I do if I've been hit by an unidentified driver?
If you have been in an accident because of the fault of an unidentified driver, you can go through your own insurance and make a claim. This is called Section D of your insurance policy. You must contact your own insurance company immediately and let them know that you will be making a claim under the Section D policy.
Q: I’ve been in a car accident and liability is unclear. What do I do?
Liability, or fault for the accident, is not always straight forward. If there is some dispute as to who is at fault, you should report the accident to the police and allow them to investigate. It is also important to seek out any witnesses to the accident in the event that they may offer assistance. Even if you are partially at fault, you can still make a claim for your injuries. In these cases, liability will be apportioned between the parties based on their share of fault and damages awarded accordingly.
Q: I’ve been in an accident and the other insurance company wants to talk to me. Do I have to give a statement?
There is no requirement to give the other insurance company a statement. If you do however choose to represent yourself, you will at some point have to deal with the insurance company directly and they will want a statement. It is always best to have a lawyer present when giving a statement to an insurance company to ensure only appropriate, relevant questions are asked.
Q: Do I have to go for an Independent Medical Examination?
Sometimes the insurance company will want you to undergo an independent medical examination. It could be your own insurance company seeking this examination for purposes of determining eligibility for your Section B benefits if you have been in a car accident. It could also be the other insurance company requesting the independent medical examination for purposes of determining quantification of your claim. Most of the time, this is a completely reasonable request and you are required to do so. However, if you are unsure you should call a lawyer to discuss your situation.
Q: Should I be careful about posting things about my accident on Facebook and other social media websites?
If you are involved in an accident, you should be aware that websites such as Facebook, Twitter, MySpace and Instagram can be accessed by your insurance company to attempt to obtain information about your activities and ability levels. We suggest you never post anything about your accident on any of these websites. However, it is your choice to do so and if you do decide to post things about your accident, it is important to always be honest about your injuries, whether it is on a social media site or when talking to insurance adjusters.
Q: I’ve been in a car accident and it's my fault. Can I still receive treatment?
If you have been in a car accident and the accident was your fault, you can still receive medical treatment through your own insurance company. In Nova Scotia we have what is called a no fault benefits coverage insurance system. In the insurance industry, the no fault coverage is also known as section B coverage. This type of coverage entitles anyone who has been in an accident to certain benefits. These benefits include the cost of going to physiotherapy, the chiropractor or massage therapy, death benefits, funeral benefits and a loss of income benefit which is known as a weekly indemnity. Section B benefits are also available to any passenger injured as a result of an accident, regardless of who was at fault for the accident. If you are a passenger in a vehicle, you can file a claim under the policy of the car you were in and you must report the accident to the insurance company of the driver/owner of the car you were in. The insurance company will then send you forms which must be returned promptly in order to access your Section B benefits.
Q: What if I wasn’t in a car at the time of the accident?
Sometimes people are involved in motor vehicle accidents without even being in a car. This is the case if you are a pedestrian or on a bike at the time of the accident. You still have access to Section B benefits. In these situations, you are able to access Section B benefits from the insurance company of the car which hit you. If more than one vehicle is involved in the accident, it is the Section B policy of the car which physically came into contact with your body (the “striking vehicle”) that you may make a claim under.
Q: Do I have to use my private health insurance benefits before Section B coverage will kick in?
If you fall within the Minor Injury Protocols, you can simply attend the treatment facility of your choice, provide them with your insurance company name and policy number, and receive up to 21 treatments without using your private insurance. If you do not fall within the Minor Injury Protocols, you must first use your private insurance. You always have the option to opt out of the Minor Injury Protocols and go through your private insurance. In that case, your Section B benefits only kick in when you exhaust your treatment coverage. If you chose to proceed this way, you need a doctor’s referral stating that the treatment is necessary in order to be covered by Section B. If you go through your private insurance, and your insurance doesn’t cover the full cost of treatment, section B will cover any extra costs your private insurance does not cover.
Q: I fell within the ‘Minor Injury Protocol’ and used up my 21 treatments. My doctor is recommending further treatment. What should I do?
In this case, your Section B benefits only kick in when you exhaust your private treatment coverage if you have coverage. If you don’t have private coverage, section B should continue to cover any treatment that is necessary and essential to your recovery. You will need a doctor’s referral stating that the treatment is necessary in order to be covered by Section B. If you go through your private insurance, and your insurance doesn’t cover the full cost of treatment, section B will cover any extra costs your private insurance does not cover.
Q: What happens when my private health insurance benefits are exhausted?
When your private health insurance is exhausted, Section B must take over funding your treatment, as long as the treatment continues to be necessary for recovery. Written documentation showing your private health insurance benefits are exhausted should be provided to your Section B adjuster.
Q: I was working at the date of my car accident – will Section B pay my salary when I’m off work?
The weekly indemnity is currently 80% of your income to a maximum of $250 per week. You must be off work for more than seven days within the first 30 days following the accident, be between the ages of 18 and 65 and have worked six of the previous twelve months leading up to the accident. It must be because of the accident you are unable to work. A doctor’s note is required in order to illustrate you are unable to work because of the accident. Typically these benefits are paid for a maximum of a two year period.
Q: How long can I receive Section B benefits?
Section B benefits for medical treatment max out at $50,000 worth of treatment or 4 years after the date of the accident, whichever comes first. However, there are times where we have been successful in challenging these limits for our clients who have been seriously injured and need ongoing treatment past the four year limitation period. Weekly Indemnity benefits are different; they continue until you are able to return to work on an 80% basis. If you are not able to return to work they continue indefinitely. There is one caveat. For the first 104 weeks (two years) after the accident, the question is whether you are able to return to your pre-accident employment level. After the first 104 weeks (two years), the question then becomes whether you are able to engage in any employment for which you are qualified, based on your age, education and experience. This may sound confusing, and it usually is. It is best to consult a lawyer if this becomes an issue for you.
Q: What happens if I have difficulty accessing my Section B benefits?
Section B benefits are contractual benefits since they arise as a result of your contract of insurance. Therefore, in order to be available to you, you must be in compliance with the contract. The Section B adjuster assigned to your file should be able to assist you with any questions or concerns. If you are unsatisfied with the service you receive, you may ask for a copy of the policy for review. If, after reviewing the policy, you are still unhappy, you have the option of bringing a bad faith claim for a breach of contract. This would mean you would be suing your insurance company for failing to uphold their end of the contract. In order to be successful with such a claim, it is not enough that the insurance adjuster was hard to deal with; you must be able to point to something in the contract your Section B adjuster failed to do. If you find yourself in this position, you should seek the advice of a lawyer.
Q: What medical benefits fall under Section B?
Section B benefits include coverage for any necessary medical treatment required as a result of injuries sustained in a motor vehicle accident. Typically these include physiotherapy, massage therapy and chiropractic treatment. However, benefits can also include things such as psychological counselling, acupuncture, medical aids and strengthening programs through a community based exercise facility. If your family doctor deems a treatment to be necessary for your recovery, Section B has a duty to provide coverage. Section B benefits also includes coverage for medication that is necessary as a result of the accident. This includes both prescription and non-prescription medications.
Q: What happens if I’m not from Nova Scotia and I have been in a car accident?
If you are a visitor to Nova Scotia, and as the result of the negligence of another, you have been injured in a car accident you are entitled to recover your losses. You are also still eligible for Section B benefits.
The Litigation Process in a Personal Injury Claim
Q: I’m thinking about coming in for an initial intake. What is the intake process?
All of our intakes are free of charge, and there is no obligation to have us represent you if you come in for an initial intake. The intake usually takes about an hour. During the intake we gather more information on the nature of your case. The information gathered helps us make a determination of whether we will be able to assist you in your claim. We also will provide you with some general information on how personal injury claims work and important dates you should be aware of. If you decide to have us represent you, we will contact your insurance company and the insurance company for the opposing party and inform them we now represent you. Should they wish to obtain information regarding your accident and injuries, they should contact us going forward. We are in a better position to determine what type of information they should and should not be entitled to.
Q: How does the court process get started?
When the expiry date of your limitation period is approaching, a Notice of Action and Statement of Claim will be filed on your behalf. These documents provide notice to the other side that you are suing them and states why you are suing them, and what you are suing them for. Once of Notice of Action and Statement of Claim is filed, depending on where the opposing party lives, they will have between 15 and 45 days to file a Notice of Defence and Statement of Defence.
Q: What is a discovery examination?
Discovery examination is part of the litigation process. It typically happens after you have filed a lawsuit, the insurance company has filed a defence to your lawsuit and the parties have exchanged the relevant documents to the lawsuit. It gives the parties an opportunity to ask questions about the case to the other side. Answers are given under oath. In personal injury claims, discoveries allow the insurance company to find out the full extent of your claim. You will be asked questions about the accident, you injuries and the impact the accident has had on your life. Think of it this way: it is the insurance company’s chance to “discover” the full extent of your claim. Discovery examinations have other purposes as well. They are a chance for the insurance company to see how you present as a witness and to assess your credibility. Chances are if your matter proceeds to trial you will be required to testify again in court. Your discovery evidence can be used to highlight any inconsistent statements, thus questioning credibility. Therefore, it is important to be truthful during discovery and answer questions to the best of your ability. If, on discovery, you admit something damaging to your claim, the opposing lawyer can read the admission into the record as evidence at trial. Therefore, you should be careful to understand the question before you answer.
Q: What happens during a discovery?
Discovery examinations do not happen in court or before a judge. Instead, they often take place in a lawyer’s office. A court reporter is present and records the evidence. If the parties request it, the court reporter will transcribe the evidence after the examination is complete. At the outset of the discovery, you will be required to take an oath or affirm to answer the questions truthfully. The difference between an oath and affirming has to do with your religious beliefs and whether you feel comfortable swearing on the bible or would rather affirm to tell the truth. The opposing party’s lawyer will then ask you a series of questions. It usually begins with simple background questions such as your name, date of birth, education level, employment history and current living circumstances. Questions will then be asked relating to the accident, your injuries and treatment, and the impact the accident has had on your life. Discovery examinations vary in length, depending on the complexity of the case and the nature of your injuries. If at any point the opposing lawyer asks an improper or irrelevant question, your lawyer will step in and likely advise you not to answer the question. If your lawyer starts to talk, that is your signal to stop speaking and to wait for instructions from your lawyer on how to proceed.
Q: What is involved in the settlement process?
The opposing party will usually request medical documentation and proof of loss of income in order to quantify your claim. From the documentation, both parties will have a range in their mind that they consider to be a reasonable settlement. There will be back and forth discussions and offers presented. Most often, opposing parties will be able to find some middle ground that is a reasonable monetary award given your injuries. Sometimes, the offers presented will not be considered to be within a reasonable range by the opposing party. In these situations, if the case cannot settle, the case will be brought to trial.
Q: What happens if my case goes to trial?
Our experience has been that the opposing parties can reach an agreement before a case needs to be taken to trial. However, there are circumstances where the parties cannot come to an agreement and trial dates will be set down. The length of trial depends on the evidence that each party wishes to present. Evidence is usually presented through lay witnesses and expert evidence. Lay witnesses include people who saw the accident take place, family and friends who are familiar with how the accident affected your life, medical providers (i.e. family doctor, physiotherapist) and you. Experts also sometimes testify to tell the court how the accident will affect you in the future. Once both parties present their case, the decision is in the judge’s hands. In personal injury cases, the judge will first decide whether the defendant was liable, and should be held responsible for your injuries. If the judge finds the defendant liable, he or she will then decide the monetary award you should be entitled to.
Q: A claim is being brought against me for a boating accident I caused. Will my insurance cover this?
This depends on the type of insurance policy you have in place. Some homeowners or tenants insurance policies will cover you in the event you are involved in a boating accident. You should be aware that some policies limit the coverage to certain types of watercrafts. You will have to read your specific policy to find out if you are covered.
Q: I’ve been injured as a result of a slip and fall. Can I sue?
Yes, you can sue. In Nova Scotia there is legislation called the Nova Scotia Occupiers’ Liability Act. This Act states that each occupier has a duty to ensure their premises is reasonably safe for use. An occupier is an owner and/or operator of a property. They are considered to have physical possession or control over the property. An occupier is typically considered to be acting reasonably if he or she has safeguarded against dangers they knew about or should have known about.
*Should you have any questions about the content of this website, feel free to contact Wagners.