Road crash victims suffering compounded by delays

Delays in the justice system are compounding the suffering of road crash victims, Toronto critical injury lawyer Patrick Brown writes in The Lawyers Daily.

Brown, a senior partner with McLeish Orlando LLP, says in the article that those who stick to their guns rather than accept a “low-ball” early offer from insurance adjusters must “buckle in for the long ride, seek out welfare and hope the lights are not shut out at the family home.”

In the meantime, he says significant accident benefit cuts will impair their ability to get treatment and stay healthy.

“If they manage to hold on and get to court, they then face an unpredictable jury that has been exposed to an advertising and media campaign painting victims as insurance fraudsters who, with their lawyers, drive up premiums,” Brown adds.

Added to burden

Legislative and case law developments have also added to plaintiffs’ burden by reducing the amount of prejudgment interest available to personal injury victims during any delay.

Insurance companies have no incentive to keep matters moving, Brown points out, since money can be put to work in investments the longer it remains in their coffers.

“To make matters worse, certain jurisdictions such as Toronto require a case to be mediated before an action is set down for trial. To get to mediation, one needs comprehensive and expensive medical opinions, accounting reports and care cost reports that take considerable time to compile and prepare,” he writes.

Even with preparation, Brown says failed mediations are the norm because the distant prospect of a trial reduces the chances of a reasonable offer to settle.

“Increasingly, trial delay is being used as a tactic to drive people away from court and to lower claim payouts. Although a defence is an essential part of the adversarial system, it is a shame that delay has become increasingly used as a gatekeeping tool to legitimate claims. To the average litigant, it is very difficult to understand why the courts give priority to other cases, when their own health and welfare is crashing and family members are being affected,” he writes.

Time limits

Brown says the court’s favouring of criminal matters over civil ones has intensified since a recent Supreme Court of Canada case that put time limits on getting cases to trial.

“The drunk driver who kills is given an expedited trial, while the spouse of the victim waits years for their day in court. As for priority being given to family law matters, a victim’s inability to earn income due to a disability can be far more devastating than many matrimonial disputes,” he writes.

In his article, Brown offers his own suggestions for improving the situation.

“It would be a start to clean up the mess by appointing more judges, giving judicial priority to personal injury/wrongful death matters and eliminating the costly and time-consuming jury system. Meanwhile, serious consideration should be given to changing the rules that require mediation before setting the matter down for trial,” he says.

“Sadly, until things change, the old axiom that justice delayed is justice denied will remain intact.”