conflictanalyticslab

By: Lauren Kim

At the outset of a case, often the first question is, “How much is my case worth?” One of the most important rights an injured person has is the right to recover damages from the party who caused their injuries. It is difficult to establish a value early on, as in most circumstances, the true cost of an injury will be brought to light once you are able to receive appropriate therapy/medical treatment and allow your body to get better.

            Damages are meant to return the injured person back to their “original position.” There are two different types of damages in personal injury cases: pecuniary damages and non-pecuniary damages. Within pecuniary damages are different subsets of damages, such as special damages and cost of future care. These losses are awarded where the claimant can demonstrate economic losses. Non-pecuniary damages are awarded for non-economic losses, such as pain and suffering.

Pecuniary Damages

            Personal injury damages are meant to compensate a plaintiff as much as possible that can be done with money. Pecuniary damages can be divided up into further categories, including: special damages, future cost of care, and future loss of working capacity. It is important to note that pecuniary damages may be raised or lowered to reflect “contingencies,” which are life events that impact prospective losses. These range from illness (a general contingency) to more specific contingencies, such as a job promotion. They can be negative or positive.

Special Damages

            Special damages compensate you for any pre-trial monetary losses. These are often easily supported by evidence. For pre-trial loss of working capacity, you can recover any earnings lost between the date of the injury and trial. There is also pre-trial cost of care, which includes all expenses you would not have incurred but for the injury. This would include medical expenses and home care and living expenses. Special damages would also be the sub-heading under which you would put a claim for any damaged property, such as damage to your car if you were in a motor vehicle accident.

Damages for Future Cost of Care

            The cost of future care includes a range of expenses that you might incur as a result of the injury, ranging from medical care expenses to personal care expenses. The injured party is entitled to compensation for expenses that are reasonably necessary for rehabilitation or to provide you with the lifestyle you had prior to the injury. This award is very mathematical in nature and often requires the help of professionals in predicting.

Some of the costs include, but are not limited to:

  • Modification of the residence or vehicle;
  • Living costs if you require living in an assisted home;
  • Transportation needs;
  • Home maintenance and housekeeping services;
  • Caregiver services; and
  • Medical expenses.

            The cost of future care is awarded in a lump sum and calculated by taking the base year annual cost of care and then applying a growth rate to calculate how costs will change in the future. The courts are aware that you will be taxed for costs of care in the future, and that award will be subject to a gross-up in order to compensate.

Damages for Future Loss of Working Capacity

            Damages for future loss of working capacity, commonly known as loss of earnings, recognizes the losses that will be experienced by the injured party. These damages are assessed based on their probability and usually requires the assistance of an actuarial professional to determine the loss and any adjustments. Under this heading, you are entitled to compensation for financial gains you would have made but for your injury. This includes salary loss and the loss of associated benefits, along with the loss of the ability to pursue other sources of income. Loss of earnings is calculated by what you would have earned between the date of trial and retirement, subtracted by the income you are now expected to earn over that same period of time. This will be adjusted for life expectancy, and also a consideration is made on the assumption that an investment of the award will be made. A loss of future pension can also be considered.

Non-Pecuniary Damages

            Non-pecuniary damages are also known as general damages and are meant to compensate an individual for the pain and suffering that the injury has caused them. This includes any pain you have suffered since the accident, are currently experiencing, and any pain and suffering that you will face in the future. In 1978, the Supreme court of Canada capped financial compensation for pain and suffering at $100,000 (this value will be adjusted for inflation).[1]

            Some factors that might be included when considering a pain and suffering award is: the nature of the injury, severity and duration of the pain and disability, age, emotional suffering, impairment of social relationships, impairment of mental and physical abilities, and loss or impairment of lifestyle.

Punitive Damages

            Punitive damages (sometimes called exemplary damages) are designed to punish the defendant and deter recurrences. Typically, these awards are rare in cases of personal injury or wrongful death, as punitive damages are justified only in circumstances where the defendant’s vindictive, malicious or reprehensible conduct constitutes an independently actionable wrong.[2]

Conclusion

            There are two types of damages available in a personal injury claim: pecuniary and non-pecuniary damages, with their respective sub-headings. It is important to document all medical care and assessments of your injuries. Keeping an organized record of all incurred expenses will help make this difficult process a bit easier.

To Note

            In Ontario, there is a time limit as to when an individual can file a lawsuit for a personal injury claim. This is set out in the law, under the Limitations Act,[3] which requires that a lawsuit be filed within two years after a person discovers they have a claim. There are two possible dates:

  • The date a reasonable person first ought to have been aware of the injury
  • The date she or he first knew of the injury

The earlier of the two occurrences will be when the two-year period commences. Normally, the law presumes that a person discovers their claim on the date the injury occurred, but this can be argued in court. If the person is a minor, the two-year time limit starts to run when the person turns 18.

            In Ontario, under the Family Law Act,[4]family members are entitled to sue for their financial losses regarding guidance and companionship and care. Those who are eligible include spouses, children, siblings, parents, grandchildren, and grandparents. Some of the damages that are recoverable under this Act are actual expenses reasonably incurred for the benefit of the injured person, funeral expenses, allowance for travel to visit the person during their treatment or recovery, if someone provides nursing, if they provide housekeeping or other services for the injured person then a reasonable allowance for loss of income or the value of the services; and an amount to compensate for the loss of guidance, care, and companionship.[5]

If you were in a car accident…

            If you were injured in a motor vehicle accident, to succeed in a claim for pain and suffering your injuries must meet a threshold. The injuries sustained in the accident must have resulted in: permanent serious impairment of a mental, psychological or physical function, permanent serious disfigurement, or death. Only claims for pain and suffering are affected by this threshold. If your injuries meet this threshold, a $30,000 deductible will be applied to the damages owed to you (unless the claim exceeds $100,000) and a $15,000 deductible from Family Law Act claims (unless the claim exceeds $50,000). [6]

Disclaimer: The information provided in this response is for general informational purposes only and is not intended to be legal advice. The content provided does not create a legal client relationship, and nothing in this response should be considered as a substitute for professional legal advice. The information is based on general principles of law and may not reflect the most current legal developments or interpretations in your jurisdiction. Laws and regulations vary by jurisdiction, and the application and impact of laws can vary widely based on the specific facts and circumstances involved. You should consult with a qualified legal professional for advice regarding your specific situation.

[1] Andrews v Grand & Toy Alberta Ltd., [1978] 2 SCR 229.

[2] Vorvis v Insurance Corporation of British Columbia, [1989] 1 SCR 1085 at para 27.

[3] Limitations Act, SO 2002, c. 24, Sched. B, s. 5-6.

[4] Family Law Act, R.S.O. 1990, c F.3, s. 61.

[5] Ibid, s. 61(2).

[6] Insurance Act, R.S.O. 1990, c.I.8, Part VI.