HOW A PERSONAL INJURY CLAIM WORKS
There are many steps involved in a personal injury claim and there are strict time lines that must be adhered to otherwise you may loose your right to recover damages. The following is a basic outline of the way a claim would proceed.
1. Initial Meeting
Meet with a lawyer to discuss your accident, your injuries, and their impact on your life. Assuming you are not at fault for the accident, you may proceed with a claim against the at fault driver. Investigation will begin to gather all of the necessary evidence to advance your claim, including the police report, medical records and employment information.
You have 2 years from the date of loss to commence proceedings at the Courthouse. A document entitled a Statement of Claim is filed and then served on the at-fault to give them notice of your action. The Defendant, or their insurance company may then retain their own lawyer to file a Statement of Defence which outlines their side of the case.
There are two parts to the Discovery phase - a) document discovery and b) Questioning for discovery.
A) Document discovery involves the parties preparing an Affidavit of Records, which is a listing of all of the relevant and material documents they have in their possession relating to the matters arising in the lawsuit.
B) Questioning for Discovery is a process where both the plaintiff (you) and the defendant (the at fault) testify under oath regarding the circumstances of the accident and your injuries. You will be briefed by your lawyer prior to the Questioning and your lawyer will attend with you at the Questioning. At the Questioning you are asked questions under oath by the at fault’s lawyer regarding the accident, your injuries and the impact on your life. Also, your lawyer asks the at fault questions about the accident in order to prove the case.
4. Alternative Dispute Resolution
If the parties are unable to agree on a settlement with informal discussions, the rules require that some form of alternative dispute resolution is attempted prior to setting a matter for trial. Parties can attend a private mediation or a Judicial Dispute Resolution (JDR). At a JDR an actual judge is involved in attempting to assess the parties and resolving the claim. This is done outside a Courtroom and is usually scheduled for only one day. In a private mediation, it is usually a senior lawyer who from a law firm or mediation company who is not involved in the case who acts as a mediator. The mediation usually takes place at one of the lawyer’s offices and where representatives for both sides are present and the mediator assists the parties in reaching a mutually agreeable settlement.
It is very rare for personal injury matters to reach trial. Often, cases are settled either during settlement negotiations, at a JDR or mediation. If the parties are unable to agree, the matter will be heard at a trial. The courthouse is very busy and it often takes several years before one can get a trial date. In addition, trials are lengthy and costly. The decision lies in the hands of the judge or jury.
6. Court of Appeal
If it is felt by either party that the judge hearing the trial made an error of fact or law, then the decision can be appealed to the Court of Appeal. Again, this is very rare in a personal injury lawsuit.
7. Conclusion of Claim
Once a claim has been concluded either by an agreed upon settlement or a decision from the Court, a Final Release is signed and the lawsuit comes to end by filing a Discontinuance of Action at the Court.
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