An experienced personal injury lawyer will be able to help counter these defence tactics on your behalf.
If you’ve been injured in a car accident that was someone else’s fault, the law in Ontario, unfortunately, does not allow for automatic monetary compensation for your injuries and losses. The insurance companies that represent and defend at-fault motorists will use many tools to limit the amount of money they have to pay for claims.
Here are some of the ways that insurance companies defend these cases.
1. Attack Credibility
While most people would think that the at-fault driver is on trial, in these lawsuits it is often the other way around. The accident victim will be heavily scrutinized. Insurers and their lawyers are looking for inconsistencies, mistakes, and errors to make the victim less believable. This includes reviewing their medical history and employment file and then assessing whether they come across as credible when describing their injuries from the accident and ongoing limitations.
Insurance companies will also often conduct intrusive surveillance of an accident victim to further attack their credibility. Private investigators are hired to interview co-workers, neighbors, and acquaintances and to film the victim while in the community. Insurers will sometimes “cherry-pick” snapshots of a person to suggest that their level of functioning is normal or that they are exaggerating their injury. Additionally, they do not always have to provide all of the videos they obtain.
2. Use Ontario Laws to Limit or Avoid Making Payments
Ontario, unfortunately, has some of the most restrictive rules for compensating accident victims. The insurer of the at-fault driver can take advantage of a $38,818.97 deductible for pain and suffering damages. This means that if the value of the injury is worth less than this amount, there is no payment made. The insurer can also require expensive medical proof from experts that the victim has a permanent and serious injury. If a significant injury heals, they may argue that no compensation should be paid at all. This is commonly called a “threshold defense”.
Insurers also take advantage of a law that only requires them to pay 70% of a victim’s income loss up to trial. Also, the insurance company for the at-fault motorist can deduct all benefits that the accident victim receives from other sources from what it has to pay.
3. Defence Medical Examinations
The insurance company for the at-fault driver will hire medical doctors to assess the accident victim to provide opinions on their injuries. Many of these doctors no longer practice community medicine but spend all of their time assessing accident victims for insurance companies. Unsurprisingly, these doctors will often find nothing wrong with the patient or attribute their complaints to other causes or malingering.
4. Blame Other Causes
Insurance companies will often look to blame the accident victim’s condition on other causes. This can include prior and later accidents and injuries, unrelated social or employment problems, and other medical conditions. For example, they may try to argue that the victim’s early retirement was due to reasons other than the car accident.
Find Help to Navigate These Pitfalls
It is critical that the accident victim has a competent lawyer advising them along the way. While these means of defending a case are legitimate and lawful, they often create a distorted picture of reality. An OTLA personal injury lawyer will be able to help counter these defence tactics.