Common Myths About Personal Injury Claims Debunked

Public perception of personal injury law is often dominated by common myths and misconceptions which can stem from misleading movies or TV, insurance company tactics, and sensational media stories from south of the border. These myths can have the effect of preventing injured individuals from seeking legal assistance in obtaining the compensation they deserve. In reality, personal injury claims are a vital legal tool that help victims recover financially, physically, and emotionally following a traumatic accident. The following are some common myths surrounding the complex world of personal injury law.

Myth: You are Compensated Based on the Defendant’s Negligence

Debunked: Many believe that the more egregious the negligence, that is, the more fault that can be placed against the defendant for the resulting injuries, the more compensation is owed to the plaintiff. This is not the case. While fault is essential to be proven against the defendant, the compensation that the plaintiff is entitled to is based on their impairment and loss resulting from the negligence. This loss can be economic (pecuniary) such as loss of income and the costs of past and future medical treatment, or it may be general loss (non-pecuniary) relating to the pain and suffering that they have experienced.

Myth: The At-Fault Party owes You Personally

Debunked: In most circumstances of personal injury litigation, the named defendant, or at-fault party, will be represented in the action by an insurance company who is under a duty to defend the named defendant in accordance with a 3^rd party liability policy (ex. automobile policy, homeowner’s policy, commercial liability policy, etc.). It is the insurer that will respond to the claim and the coverage provided by their policy that will sought after to compensate the plaintiff.

Myth: Starting/Maintaining a Civil Action is Expensive

Debunked: While the first things that may come to mind when thinking about hiring a lawyer and commencing a lawsuit is the retainer fee and hourly billing rate, in many cases these concerns are misplaced. In personal injury law, firms have largely adapted to become more accessible in the fees they charge. Contingency fee agreements are now widely used and regulated by the Law Society of Ontario. Under these agreements the client does not pay the lawyer an up-front fee and is not charged an hourly rate thereafter. Instead, the client agrees to pay the lawyer a percentage of their claim upon a successful outcome, whether that be through an agreed settlement or through damages awarded by a court after trial. This way, a plaintiff can focus on receiving treatment and recovering from their injuries rather than on paying legal fees to keep their lawsuit moving forward.

Myth: All Injuries Resulting from a Car Accident can Warrant Compensation

Debunked: In order to be entitled to damages for pain and suffering as a result of injuries sustained in a car accident, said injuries must constitute a “permanent serious impairment of an important physical, mental or psychological function”. Though this requires a thorough legal analysis, an injury that is not considered permanent/ significantly prolonged, or that is not seriously impairing the individual’s daily living, would not satisfy this requirement. This test, known as the Threshold, is stipulated within the Ontario’s Insurance Act and is meant to filter out significantly minor car accident injuries from receiving compensation. Frustratingly, the issue of meeting the threshold is not raised until after the conclusion of trial. Meaning a plaintiff may go through years of litigation and be awarded a quantum of damages only to be deemed to not meet the Threshold and not be entitled to a dollar of compensation.

Myth: You Have a Long Time to Start Your Claim

Debunked: The basic limitation period to initiate a claim for personal injuries is 2-years from the date the injury took place. While this might seem like a long time to decide whether or not to pursue an action, in certain circumstances there are required steps to be taken within these 2 years that, if missed, may prove fatal to a subsequent claim. For example, in the context of a slip and fall in snowy/icy conditions, written notice of the fall is required to be given. When the fall occurs on public land (ex. sidewalks) notice must be given to the municipality within 10 days of the fall. When occurring on private land (ex. commercial premises) notice must be given to the property owner within 60 days.

Myth: You are entitled to Receive All the Damages a Court Awards You

Debunked: Another little-known function of the Insurance Act is the effect of statutory deductibles. These deductibles allow defendant insurers to reduce an injured plaintiff’s damages for pain and suffering by an amount set yearly by the Financial Services Regulatory Authority of Ontario. In 2025, the deductible is set at $46,790.05, for damages totalling less than $155,509.39. This means that a plaintiff who was awarded $100,000 of general damages at trial would only receive $53,209.95 after the deductible was applied. Alternatively, is a plaintiff is awarded $200,000, the deductible would not apply. If a plaintiff is awarded an amount less than the deductible, they receive nothing. What is even more troubling about this is, in the context of jury trials, the plaintiff’s lawyers are not permitted to advise the jurors of the deductible’s existence. This makes for juries awarding quantums of damages that they believe to be appropriate to compensate the plaintiff for their pain and suffering, but to which, unbeknownst to them, only a fraction is awarded. Not only does this deductible effect damages awarded at trial but is also taken into account during settlement discussions.