Should I sue?

Photo: Contributed - OcusFocus

Where injury or death is caused by a wrongful act (i.e. car accident, fall, assault, defective consumer product, or negligent medical treatment or care received) you may find yourself asking the question, “Should I sue?”  

In cases involving catastrophic injury or the death of a family member, dealing with your new reality may seem more than enough. The last thing you want to think about is a lawsuit.

However, when the consequences are life-altering, it is often of greatest importance to consider the question. While it may be admirable to not want to sue on the principle that two wrongs do not make a right, most people have insurance to provide compensation when mistakes are made. The benefits that a lawsuit can provide may be in your best interest, or the best interest of your loved one.

While every case is unique, and you will have your own perspective on potential benefits or consequences of a lawsuit, the following are some criteria for you to consider when deciding whether to pursue legal action:

Some factors generally in favour of suing:

• There are no significant liability concerns. In other words, a person and/or entity is at fault (or is most likely at fault), and caused the injury or death. *Note: The party at fault does not necessarily have to be the only cause of the injury or death in order for you to be successful. See: Proving liability in an injury claim.
• You are within the limitation period. In other words, you have not missed the deadline to sue.
• You or your loved one has suffered moderate to serious injury or death.
• The injury has resulted in temporary or permanent disability.
• The injury or death has caused, or is going to cause, significant personal or financial loss (i.e. pain and suffering, loss of enjoyment of life, medical and rehabilitation expenses, loss of income, and loss of capacity to work).
• Financial compensation from a lawsuit would provide for a better life for you or your loved one (i.e. better medical care, better medical equipment, respite services, housekeeping assistance, replaced wages, etc.).
• You or your loved one has no (or limited) disability insurance or life insurance.
• The wrongdoer has insurance, or the financial ability to pay a damage award.  
• You do not want what happened to you or your loved one to happen to others. Lawsuits can serve an important purpose of deterrence and prevention when a person or business has engaged in behaviour that should be discouraged. Lawsuits can also educate the public, those directly involved, and others who may indirectly learn from the wrongdoer’s mistakes. It is one of the few times that you can have the power to change an industry. See: The good lawsuit. 

Some factors generally against suing:

• There are significant liability concerns. In other words, it is unlikely that there is anyone legally at fault for the injury or death.
• You have missed the limitation period. In other words, you are out of time to sue, and you do not meet the criteria for extending the limitation period.
• You or your lawyer will be unable to prove what caused the accident or injury. See: Proving causation in an injury claim. 
• Your injuries are relatively minor, and you recovered quickly. *Note: Some minor injury claims are still worth pursuing.
• The damages likely to be awarded are not sufficient to warrant the time and costs required to pursue the claim.
• You have engaged in illegal activities that, if uncovered, could cause more pain (financial or otherwise) than any amount of compensation that could be gained from a lawsuit.
• The wrongdoer has no insurance or financial ability to pay a damage award. *Note: In a motor vehicle accident, even where the driver has no insurance or where you are involved in a hit and run, you can often still recover compensation from ICBC if certain criteria is met. 
• You or your family will have to continue to deal with the person you are suing. *Note: This may or may not present a problem, depending on the specific facts of your case. 
• You have no interest in financial compensation, or there is no amount of compensation that would make it worthwhile for you to have to deal with the time, stress, or potential emotional consequences of a lawsuit.  

While this column is titled ‘Should I sue?’ it is important to remember that some claims can be settled without commencing a lawsuit. In addition, even when you commence a lawsuit, it does not necessarily mean that you will have to go to trial. 

If you are asking yourself whether you should sue, it is probably worthwhile to have a consultation with a lawyer, and the sooner the better. There are time limits for commencing a lawsuit, evidence can disappear, and memories of key witnesses will fade. 

You may find out that you do not have a good claim, in which case, at least you will know.  Alternatively, you may find out that you do have a good claim, as well as the costs and potential benefits of your case. 

At the end of a consult, you should have all the relevant information to do your own analysis, and make a decision that is right for you.  

*Important Note: The information contained in this column should not be treated by readers as legal advice, and should not be relied on without detailed legal counsel being sought.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.