“Do I have a claim? Do I need to hire a lawyer?” (by John McKiggan Q.C.)

We get asked these questions a lot. The injury lawyer at McKiggan Hebert help clients throughout Atlantic Canada who have suffered serious injuries from car crashes, medical malpractice or other negligent actions.But sometimes people who have been injured don’t know if they have a claim worth pursuing. Or perhaps they know they have a claim, but they want to try to settle the claim themselves.

Public Legal Education Guides

That is why I wrote my public legal education consumer guides:

  • Crash Course: The Consumer’s Guide to Car Accident Claims in Nova Scotia;
  • Health Scare: The Consumer’s Guide to Medical Malpractice Claims in Canada;
  • Brain Matter: The Survivor’s Guide to Brain Injury Claims; and
  • Breaking the Silence: The Survivor’s Guide to Sexual Abuse Claims

By reading these consumer guides you will learn what issues you need to consider to determine if you have a claim that you should pursue, what you need to prove to win your claim, and when you may need a lawyer to help you.

“What if I want to do it myself?”

I certainly don’t recommend that people who have not had legal training go out and represent themselves in every case. There are lot’s of ways you can screw up your claim if you don’t know what you are doing.

On the other hand, in some claims the legal issues are simple and/or the amounts involved are small and the consumer may feel confident in handling the claim themselves. What should you do if you want to do it yourself?

There is a lot of useful information in my consumer guides. By reading the guides you will get a good idea of the legal issues involved in your claim and whetehr or not the claim may beyond your ability to deal with on your own.

But if you decide you are comfortable pursuing your claim on your own, here are our Top Ten Tips to help you get fair compensation for your injuries.

Tip #10: Don’t Talk to Anyone About your Claim:

Remember that the defendant’s insurance company is trying to collect as much information as possible about your claim. The insurance company will use this information to deny liability (or fault) for your claim or to minimize (reduce) the amount of compensation the insurance company has to pay you for your injuries.

Giving a statement to the defendant’s insurance company only helps the insurer prepare to defend your claim. You should also keep in mind that anything you say to your family, your neighbours, your friends or your coworkers or post on Facebook or Twitter could end up being used against you in court.

Tip #9: See your Doctor:

You should return to see your doctor on a regular basis. Make sure you tell your doctor about your complaints and symptoms. As a general rule, you should see your family doctor at least once a month.

The amount of compensation you may be entitled to receive will depend almost entirely on the quality of the medical information you have to document the nature and extent of your injuries.

Do not try to minimize your symptoms when you see your doctor. Having detailed information about your symptoms is the best way for your doctor to figure out how to treat you. Remember when your doctor asks you to explain what your symptoms are; don’t just say, for example: “I have a sore back.”

Explain to your doctor what your symptoms are and how they affect your daily activities. If you have a sore back you may want to tell your doctor, for example, if you can’t unload your dishwasher, or if you can’t bend over to pick up your children, or if your back pain it makes it difficult to mow the lawn or if it prevents you from being able to sit at your desk at work.

In other words, explain to your doctor how your injuries impact on your day to day activities and your ability to perform your duties at work.

Tip #8: Keep a Record of your Symptoms:

Try to keep a daily or weekly record of your symptoms and your progress. Some people find it difficult to keep a daily diary of their symptoms. I have found that most of my clients have a calendar that they keep in their kitchen. If you jot down a note on your calendar from time to time about how your injuries have affected you at home or at work it makes it a lot easier to keep track of your progress.

This information can be very helpful. If you are in court years after your accident, you will be able to recall your pain and your suffering and the difficulties that they caused more vividly. For example, if the defendant’s lawyer asks: “How did your injuries affect you?” if you haven’t kept notes, you may say: “Well… its been a long time. I just remember I was in a lot of pain.” On the other hand if you have kept a diary you will be able to give specific examples. These are actual examples from the testimony of some of my past clients:

  • “On December 15th I missed my daughter’s first Christmas concert at her school. My back hurt so much I was lying at home on the couch in pain. She was so disappointed.”
  • “On May 10th I tried to do some gardening in my backyard for a few minutes. My knees hurt so bad I had to stop. The next day I could barely walk.”
  • “On April 23rd I had to close the door to my office and lie down on the floor because my back was spasming so bad.”

These kind of specific examples are far more effective in conveying to a judge or jury the kind of pain that you are in and how your injuries affect your life rather than simply saying: “Oh well I remember I was in a lot of pain.”

Tip #7: Keep a Record of your out of Pocket Expenses:

Make copies of your receipts for all your medical, hospital, and drug bills. Make sure you keep a record of any other expense you have in connection with your injury.

For example, if you have to hire someone to mow your lawn or shovel your side walk, make sure you keep a record. All of these expenses should be paid by cheque and you should obtain and keep receipts. Having an accurate list of your out of pocket expenses can help ensure that you are fully compensated when it comes time to resolve your claim.

Tip #6: Wages and Lost Earnings:

Keep an accurate record of all days that you lose from work because of your injuries. If you have to use “banked” sick leave in order to compensate you while you are off recuperating from your injuries make sure you get a record of this from your employer.

If you have to turn down over-time because of your injuries, keep a record so that you can be reimbursed for this lost income.

If you have to turn down a promotion or the offer of a new job make sure you make a record of the offer, and how much the job would have paid, so that you can be fully compensated for the potential lost income when it comes time to resolve your claim.

Tip #5: Damages to your Car:

Most people are in a rush to have their car repaired after an accident. Do not have your car repaired until you have taken plenty of pictures! After the pictures are taken you can let your collision insurance carrier repair your vehicle. If the photographs show significant damage to your vehicle that will help convince a judge or jury that you suffered significant injuries in the accident.

Tip #4: Witnesses:

Make sure you get the correct name, address, and telephone number of any witnesses that may have seen your accident or who know anything about your injuries.

Do not rely upon the police to collect this information! If an accident seems straight forward the police may not even take statements from witnesses. But that will not stop an insurance company from denying your claim.

If your claim ends up having to go to court, it can be very difficult to track down witnesses’ years later unless you have accurate contact information.

Tip #3: Save your Cast:

If you have to wear a cast, or a brace to help you get better, or if you have to use crutches, a walker or a cane to help you through your rehabilitation, make sure you save it for evidence at your trial.

Showing a judge or jury the cast that you had to wear for six weeks, or the knee brace you had to wear for six months can help ensure that they understand the pain and inconvenience that your injuries caused. This can help make the difference in getting fair compensation for your injuries.

Tip#2: Pictures, Pictures, and more Pictures:

The old saying that a picture is worth a thousand words is never truer than in a personal injury claim. Take pictures of the damages to your car, take pictures of your injuries, and take pictures of you in the hospital or going through physiotherapy or rehabilitation.

Pictures of your injuries and the kind of treatment that you had to undergo as a result are far more convincing to a judge or a jury than simply reading about it in a medical report or hearing a doctor describe it in court. To put it very simply you cannot take enough pictures to document your injuries and how they affect your life.

Tip #1 Remember the “Golden Rule” of Personal Injury Claims:

The “golden rule” for personal injury claims is that you should never settle your claim until you have recovered from your injuries (and you will know when that is), or until your doctor tells you that you are never going to fully recover.

In other words, you shouldn’t settle your claim until you know what the future holds.

When you settle your claim you are going to have to sign a piece paper called a “Release of Claim” form. That piece of paper says that you will never sue anybody as a result of your injuries. So if you wake up the next day and you are paralysed by your pain and can’t get out of bed to go to work, tough luck.

So remember the Golden Rule: Until you are fully recovered, or until you know what the future holds, you should never settle your personal injury claim.

These are my Top Ten Tips to help you get fair compensation for your personal injury claim. I hope you find the information useful. If you have any questions about your injury claim you can call  John McKiggan Q.C., at (877) 423-2050 or toll free at (877) 423-2050.

You can get more information on  John’s Halifax Personal Injury Lawyer blog.


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