Accident Benefits and Tort Claims: What’s the Difference and How Do They Intersect?
If you’ve been involved in a car accident, there are two sources of compensation that may be available to compensate you for any injuries, damages, expenses, and losses you may have suffered.
The first source of compensation is through statutory accident benefits (“SABS”), which involves seeking compensation from your own auto insurance policy. This operates as a form of no-fault insurance coverage, which is attached to every auto insurance policy in Ontario.
The second source of compensation involves pursuing a tort claim, which involves filing a civil lawsuit against the driver or other party responsible for the car accident. To be able to pursue a tort claim, you must either be considered not at fault or only partially at fault for the car accident.
Statutory Accident Benefits (“SABS”)
Accident benefits are available to anyone involved in a car accident, irrespective of who caused the accident. These benefits are most commonly called Statutory Accident Benefits (“SABS”). The SABS system is often referred to as the “no fault” system.
Typically, you will pursue a claim for accident benefits through your own auto insurer. However, if you do not have your own auto insurance coverage, there are certain provisions which allow you to claim against other insurers, such as the issuer of an insurance policy on which you are a listed driver, the insurer of the vehicle in which you were a passenger, or the insurer for any motor vehicle involved in the accident.
Here are some of the benefits that you are able to receive compensation for under SABS:
- Income replacement: You are entitled up to 70% of your gross income to a maximum of $400 per week;
- Non-earners: You are entitled up to $185 per week;
- Child care: You may be entitled to $250 per week for the first child and $50 per week for each additional child. However, as of September 1, 2010, this is an optional benefit. If this benefit was not purchased as an addition in your auto insurance policy, it may not be an available benefit.
- Attendant care: You may be entitled up to $3,000 per month. This amount is increased to $6,000 per month if the injuries are catastrophic. After September 1, 2010, this benefit is not available to those whose injuries are categorized under the minor injuries guidelines (MIG).
- Housekeeping: You may be entitled up to $100 per week. After September 1, 2010, this is considered an optional benefit. If the auto insurance policy does not cover this benefit, you would not be able to claim this benefit.
- Medical/Rehab: All medical or rehabilitation expenses that are incurred as a result of your injury that are not covered under OHIP or private health insurance, prescribed by a health practitioner is covered up to $100,000. This limit is increased to $1,000,000 if your injuries are catastrophic. However, after September 1, 2010, this limit has been reduced from $100,000 to $3,500 in minor injury cases and $50,000 in non-catastrophic injury cases.
- Death: If the accident results in death, this benefit entitles $25,000 to the spouse and $10,000 to each dependent. Funeral expenses will also be reimbursed up to $6,000.
- Other benefits: Loss of educational expenses for students (up to $15,000), loss of prescription glasses and worn clothing, and travel expenses for family members or those living with the accident victims for their visiting costs during treatment or recovery.
- Enhanced Accident Benefits: Accident Benefits in most of the categories above can be enhanced by payment of an additional premium. You can purchase income replacement benefits of up to $1,000 per week, or medical and rehabilitation benefits of up to $1,000,000 even if you are not catastrophically injured, but this has to be done before you get into an accident. Petker Campbell Postnikoff recommends that you speak to your insurance agent about enhanced accident benefits.
In addition to the above benefits, you are also entitled to bring a claim against the negligent driver who was at fault for the car accident if you sustained a serious and permanent impairment or have sustained a serious and permanent disfigurement as a result of the car accident. You have two years from the date of the accident to commence this tort action
The compensation which you receive for pain and suffering (known as a “non-pecuniary damages award”) is subject to an increasing deductible which on January 1, 2018 went up to $37,983.33. However, if your non-pecuniary damages surpass $126,610.07, the deductible disappears. These numbers are adjusted periodically. Your lawyer will be able to tell you the current figures.
Family Law Act claims, or claims by relatives for the loss of the care, guidance and companionship of an injured person, are subject to a deductible as well. Currently that number is $18,991.67, disappearing if the family Law Act claim exceeds $63,304.51.
In a tort claim, you can also claim for past lost income, future lost income, impairment of your ability to earn income, loss of competitive advantage in the workplace, future care costs and out-of-pocket expenses and business losses. These claims are not subject to a $30,000 deductible.
The Interaction between SABS and Tort Claims
The benefits you receive from SABS will vary depending on the seriousness of your injury. Typically, if you suffer a substantial inability to perform the essential tasks of your job following the car accident, an income replacement benefit is payable. The benefit is calculated at 70% of your gross income to a maximum of $400 per week (unless you purchase enhanced coverage).
However, SABS is intended to provide a minimum benefit and may not represent the total amount of compensation to which you are entitled. A tort claim, however, is designed to place you in the financial position that you were in should the car accident not have occurred. In addition to compensation for pain, suffering, and loss of enjoyment of life, you can potentially receive compensation for all economic losses that arose from the injury, which includes past and future income and past and future healthcare expenses.
Since you can initiate a SABS claim immediately after the accident, you will have access to a treatment team that can properly assess the injuries you sustained and the treatment/services that you need. This ensures that your injuries, and the treatments and services that you require, will be documented right away. This helps inform what damages to include in your tort claim. For example, should you require $5,000 per month for treatment but you are only receiving $3,000 per month from your insurer, you can pursue the remaining amount through your tort claim. Also, if you exhaust the maximum amount of medical and rehab benefits you’re able to claim through your insurer but there is a clear indication that you require further treatment, you can pursue those benefits through the tort claim as well.
However, there are risks involved when pursuing a tort claim while receiving benefits through your auto insurer. For example, “cashing out,” your SABS, which means receiving a one-time, lump-sum payment from your auto insurer may impact your tort claim.
If you’ve been involved in a serious car accident, it’s important to contact a legal professional as soon as possible to assess your claim and the compensation that you may be owed. Dealing with your auto insurer while commencing a legal action against the negligent driver is not something that you should do alone. The Waterloo personal injury lawyers at Petker Campbell Postnikoff bring years of experience when it comes to helping accident victims receive fair compensation and benefits. To book a consultation with a member at our firm, call us at 519-886-1204 or contact us online.