Damages key when deciding whether to sue

This article was originally published on Advocate Daily on October 22, 2015.

If an individual is injured while outside of their home on either private or municipal property, one of the first issues to evaluate in terms of whether to seek legal recourse is how significant the damages are, both economically and in relation to pain and suffering, says Toronto personal injury lawyer Emily Casey.

“Typically, I tell clients the first question they have to ask themselves is, ‘What is the damage?’” she says.

“That’s the same with any type of civil lawsuit. If you fall down and scrape your knee but can work the next day, there would be no loss of income. If you fall down and break your leg and can’t go to your job as a server or you can’t operate in an emergency room, that’s different. Then there are cases where you may have a significant injury that’s going to bother you for months or years.”

Casey, an associate with Tkatch & Associates, says regardless of the circumstances, the plaintiff has to show they’ve experienced damages, whether it’s pain and suffering, economic loss or both.

“There’s not necessarily a clear line in terms of when a lawsuit is warranted, but if you’re off work with an injury for two weeks, you’d have to evaluate whether it’s worth it to spend thousands of dollars on a lawsuit,” she tells AdvocateDaily.com. “All of these cases are fact-specific, so you have to think about what the damage is versus what you could possibly recover.”

Contingency fee arrangements take some of the pressure off plaintiffs in terms of expenses, says Casey — though she notes that doesn’t mean every claim should be pursued.

“I would say it never really hurts to consult a personal injury lawyer, and oftentimes, at first blush, we can see whether it’s worth pursuing,” she says.

Depending on where an injury occurred, timing may also be a factor to consider, says Casey.

If the injury was sustained on municipal property, for example, notice of the intent to sue must be given within 10 days of the incident, she says.

“This is especially important in cases where a municipality needs to be able to investigate the defect, like if someone slipped on ice, for example,” she says. “You can still bring a claim and be successful if you miss this short limitation period, but in some cases it can lead to dismissal of your claim.”

The municipal limitation period doesn’t apply for privately owned properties like a mall or theme park, says Casey, though she says other rules come into play.

“If you went into a grocery store and fell on your head, it doesn’t necessarily mean it’s the store’s fault,” she says. “You’d still have to prove they didn’t take reasonable precautions to make sure you’re reasonably safe.”

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