Personal Injury Claims - A. W. McGarvey Law Office
Personal injury claims include claims for any kind of physical and/or psychological injuries. Some examples include claims for sexual abuse (including historical sexual assault), physical assault, and any injuries caused by the negligence of others (such as most car accidents). For other information such as medical benefits and loss of income, regarding motor vehicle accidents, please see our page ICBC Claims.
The following describes the basic chronology of a personal injury matter. The process is complex, and the following discussion is a broad overview of the process. The following is not legal advice or a substitute for legal advice.
Personal Injury Claims are Civil Claims (Including MVA / ICBC Claims)
Claims for personal injury proceed through the civil court system. Personal injuries caused by others, whether deliberately or through negligence, are called “torts”. The person who caused the injury is called a “tortfeasor”, which means “wrongdoer”. When you sue someone for a wrongdoing that caused you injury, you are suing in tort, or commencing a “tort action”. Tort actions are also called civil actions.
Tort actions and criminal actions are separate and distinct, even though they may be occurring at the same time. In a criminal action the victim or “complainant” is only a witness. The Crown, who represents the Queen, is the party who prosecutes the person who committed a crime, who is called the “accused”. The outcome sought addresses the wrong committed against the individual and society as a whole.
In contrast, in a tort action the person suing is called the “plaintiff”, who is pursuing an outcome against the person who committed the wrongdoing, who is called the “defendant”. In the tort action, the plaintiff is pursuing a monetary award for compensation for injuries as well as any expenses incurred as a result of those injuries (for example, medical expenses and/or psychological treatment). The civil court system seeks to put the plaintiff in the position he or she was in before the wrongdoing, and does so monetarily, so far as money can compensate anyone for pain and suffering.
There are a number of important steps involved in the process of a tort action, which fall into three broad stages: 1) the pleadings period; 2) the questioning period (also called “discovery”); and 3) the trial process.
The Pleadings Period
The pleadings period includes the exchange of court documents that commence and respond to a lawsuit. The plaintiff prepares a Notice of Claim (for actions in Small Claims Court), or a Notice of Civil Claim (for actions in Supreme Court), and once filed at the appropriate court registry, the claim is served on all of the defendants. The defendant(s) then file a response to the claim, called a Response (for actions in Small Claims Court), or a Response to Civil Claim (for actions in Supreme Court). Once all documents have been filed with the court and served on the parties, and all of the deadlines for doing so have passed, the pleadings period is closed.
A number of considerations arise when commencing a lawsuit, which include determining whom to sue, where to sue, and when to sue.
Whom to Sue
Determining whom to sue may be straightforward in some cases, but not in others. For example, if you are injured inside a building because of poor maintenance, you would need to determine who owns the building, and who was responsible for maintaining the premises so it was safe for public use. There may be more than one person you would need to sue and name as a defendant in the action.
Where to Sue
Determining where to sue includes a determination of both the applicable jurisdiction as well as the appropriate level of court. Jurisdiction includes whether you need to sue in a British Columbia court or the court of a different province. You might also be required to sue in Supreme Court as opposed to a Provincial Court.
Determining the appropriate level of court involves an assessment of the amount you are seeking. For example, claims for $25,000.00 or less must be commenced in British Columbia’s Small Claims Court. Claims over $25,000.00 may be commenced in either the Supreme Court or Small Claims Court, but if proceeding in Small Claims Court you must forego any amount over $25,000.00. There may be strategic or practical reasons for foregoing an amount over $25,000.00 to proceed through Small Claims Court, including the fact that you may save on legal fees because Small Claims Court is designed for self-represented litigants. The Supreme Court is more complex and incorporates Supreme Court Civil Rules, and having a lawyer to represent you is recommended. Lawyers are also able to provide helpful advice and guidance concerning Small Claims actions.
When to Sue
When to sue is a crucial determination because of deadlines known as limitation periods. Depending on the type of action you are commencing, you have a set time period for filing your pleadings: a Notice of Civil claim for Supreme Court actions, a Notice of Claim for Small Claims actions, or other formal court documents that commence an action (i.e. a petition). For example, a claim for injuries caused by the negligence of others often has a two-year limitation period from “the date of loss” or, perhaps, the date you discovered the loss. Another limitation period concerns the time you have to serve the filed Notice of Civil Claim on the defendant.
The Discovery Period
Once the pleadings have closed, that is, all claims and responses have been filed and served on the parties, the next step concerns the exchange of documents and other evidence. Part of this procedure is what is known as “examinations for discovery”. Examinations for discovery are formal meetings in a private setting, but not a courtroom, and are recorded by a court reporter. The other party’s lawyer asks questions to the witness and the witness is under oath (has formally sworn or affirmed to tell the truth). For example, the plaintiff’s lawyer asks the defendant questions under oath, and the defendant’s lawyer is also present. The defendant’s lawyer similarly “discovers”, or asks questions, to the plaintiff. The plaintiff’s lawyer is present, the answers provided are under oath, and the questions and answers are recorded. This process includes more exchange of documents and other evidence. At some point a trial date is set.
Alternative dispute resolution methods are available throughout the process, for example negotiation and mediation. Negotiations take place throughout the process, whereas mediations usually take place closer to a trial when both parties have gathered and analyzed the majority of the evidence.
The Trial Process
A trial is generally the last stage in the process. The plaintiff and his or her lawyer present their case by submitting evidence in the form of documents and witnesses who testify. The defendant and his or her lawyer provides a defence, and the Judge or jury makes a decision on liability – who is at fault, and the amount of money awarded.