Issue link: https://digital.canadianlawyermag.com/i/51536
DAMAGES IN A PERSONAL INJURY CLAIM: WHAT YOU NEED TO KNOW Looking ahead helps determine fair settlements JOHN MCLEISH McLeish Orlando LLP H ow do lawyers and courts decide what a fair settlement amount should be for a seriously injured client? A lot of careful thinking goes into determining those amounts; the settlement must cover the injured person's needs both now and in the future. When someone has been injured as a result of another person's negligence, damages are intended to fully compensate the injured person for his or her losses — as much as money can in these circumstances. Some losses are obvious; for example the cost of medical treatment not covered by OHIP, as well as lost wages immediately following the accident. However, many losses are less apparent; these losses are the ones that need to be considered to truly cover the client's needs. The difference between an adequate settlement and an exceptional one comes down to the skill of the lawyer who can develop theories of the various losses. One key loss that a skillful lawyer will factor into damages is lost future income. For example, a young man fractures his knee and after surgery and physiotherapy and several months off work, he goes back to his old job 16 at the same pay. No future loss of income, right? Actually, there is — and it's probably a lot more than you would think. After an injury like this, he will likely develop arthritis in his knee, which will get progressively worse and may force him to retire fi ve or even ten years sooner than he would have otherwise. Another example: a young woman is injured and misses a year of school. As a result, she will enter the workforce a year later and lose a year's worth of income. Her settlement should just cover that year's lost income, right? No. As a result of the injury, she will always be a year behind, and will lose income every year of her working career. Or what about a single person who suffers an injury that makes that person less attractive as a potential spouse? Whether it's a disfi guring facial scar, a brain injury, or a spinal cord injury, that individual may lose the benefi t of entering into a marriage or common- law relationship. As a consequence, that person also loses the chance to share in a partner's income — and in all the other benefi ts that are derived from living with another person. But future loss of income is just one factor in calculating a fair settlement amount — there are many other categories of damages. The cost of future care, management fees so the injured person can hire someone to manage the settlement, damages for pain and suffering, and loss of enjoyment of life … the list goes on. Another issue to consider is that after an injured person has received a settlement, he or she can end up making unwise investments or becoming a target for con artists. Structured settlements protect the settlement and provide a good tax-free return. A skillful and caring lawyer will have a structured settlement specialist meet the injured person and explain how a structure works and the many options that can be tailored to fi t an individual's needs well into the future. A lawyer representing an injured person should discuss all potential categories of damages with his or her client from the outset and work hand- in-hand with the client to ensure he or she is fully – and fairly – compensated. LLP PERSONAL INJURY LAWYERS PERSONAL INJURY