Introduction
One of the first questions people ask when they are considering their legal rights following a motor vehicle accident, slip and fall, or any other kind of injury, is “What is my case worth?”
The fact is, it is difficult to assess damages in the early stages of a case. In most circumstances the true cost of an injury is unknown until you have had time to seek medical treatment, receive proper therapy and have had a chance for your body to rehabilitate, mend and get better. The process can take years and can be very expensive. That is why it is crucial you seek legal representation to ensure you are getting the necessary funding for the treatment you require. Lawyers with experience in personal injury law have resources available to them and can point you in the right direction for treatment.
Factors to Consider when Assessing Damages
In personal injury cases such as motor vehicle accidents, monetary damages are paid to an injured victim (plaintiff) by the at-fault party (defendant) who is found to be legally responsible for the accident. In most circumstances, an insurance company is responsible for the payment of damages in motor vehicle accidents and slip and fall cases. In most cases, the amount of damages can be agreed upon prior to trial at a settlement. In Ontario, the majority of cases, over 90%, settle prior to trial[1], which is a good thing for personal injury victims.
There are many things to consider when assessing the value of a claim. Some of these factors include the nature of your injury, the cause of the injury and the impact that the injury has on your ability to work and on the activities of daily living such as household chores and recreational activities.
Once your lawyer has received sufficient medical information from your health care providers and any medical specialist, he or she will be in a better position to provide you with a more accurate assessment of your claim. At Siskinds, we do this by reviewing the extensive case law available to us, identifying similar cases where previous decisions have been provided by the courts and also considering previous personal injury cases that our Personal Injury Group lawyers have handled.
Compensatory Damages in Personal Injury Cases
Most personal injury damages are classified as “compensatory”, meaning that they are intended to compensate the injured plaintiff for what was lost due to the accident or injury. A compensatory damages award is meant to make the injured plaintiff “whole” again from a monetary perspective. This means trying to put a dollar figure on all the consequences of an accident and its effect on the injured person’s life. Some compensatory damages are relatively easy to quantify such as reimbursement for property damage and medical bills, others are more difficult such as placing monetary value on pain and suffering or the inability to enjoy hobbies because of physical limitations caused by accident-related injuries.
Some types of damages common in personal injury cases
Medical treatment
A personal injury damages award almost always includes the cost of medical care associated with the accident including, reimbursement for out-of-pocket expenses for medical treatment you have already received and compensation for the estimated cost of medical care you will require in the future as a result of the accident.
Pain and suffering
You may be entitled to compensation for pain and suffering you endured, or will continue to endure, as the result of the accident. Pain and suffering damages are referred to as non-pecuniary general damages.
The Supreme Court of Canada in 1978 capped the amount of damages that can be awarded for pain in suffering. With inflation, that number is approximately $340,000.00 for the most severe cases of pain and suffering, such as in the case of a young adult quadriplegic. The reasoning for the cap was provided in Andrews v. Grand & Toy Alberta Ltd., where the Supreme Court opined that damages for pain and suffering are not really compensatory as no money can provide true restitution. Accordingly, such damages should be viewed as simply providing additional money to make life more endurable. Under the law, the plaintiff will already be fully compensated for future loss of income and future care costs.
If your claim arises out of a motor vehicle accident, to succeed with your claim for pain and suffering your injuries must meet certain requirements. In legal circles, this is called the “threshold”. If during your lawsuit, or at trial, a court finds your injuries do not meet this threshold, you will not be entitled to damages for pain and suffering. In order for your claim to pass the threshold, the injuries sustained in the motor vehicle accident must have resulted in:
- Death;
- Permanent serious disfigurement (e.g. loss of a limb or scars); or
- Permanent serious impairment of an important physical, mental or psychological function.
Claims for pain and suffering are not allowed unless you meet this threshold, however, claims for loss of income and loss of earning capacity are not affected by the “threshold”. If your claim meets the threshold, there is a $36,450.00 deductible from the amount of damages you, the injured party, would otherwise receive. There is an $18,270.00 deductible for Family Law Act claims (explained below). The deductible will not be applied where claims for the injured party exceed $100,000.00, or claims under the Family Law Act exceed $50,000.00. These two deductible amounts were increased on August 1, 2015, which further erodes just compensation for an injured plaintiff.
For example, if the court awards you $100,001.00 for pain and suffering, you will be entitled to that amount. However, if the court awards you $80,000.00 for pain and suffering, since the amount is under $100,000.00, your claim is reduced by $36,450.00, leaving you $43,550.00 for the pain and suffering award. If the court awards $36,450.00 for pain and suffering, after applying the $36,450.00 deductible, your award is $0[2].
Income
You may be entitled to compensation for the accident’s impact on your salary and wages in the past and in the future. A damage award based on future income is characterized as compensation for an accident victim’s “loss of earning capacity.”
As stated above, the principles of “meeting the threshold” do not apply to your claim for loss of income. Income losses can be claimed; however you cannot claim a loss of income for the first 7 days after an accident. You can only receive 70% of your gross income loss. After trial, you can receive 100% of your gross loss of income.
Housekeeping and Home Maintenance Services
You may be entitled to compensation for housekeeping and home maintenance services that you are no longer able to perform as a result of your injuries.
Property loss
If any clothing or other items were damaged as a result of the accident, you are entitled to reimbursement for repairs or compensation for the fair market value of the property that was lost. Usually, the automobile insurer is reasonable for such out-of-pocket expenses, but to the extent the insurer does not pay, these expenses can usually be recovered in the lawsuit (tort claim).
Family Member Claims
Pursuant to Ontario’s Family Law Act (“FLA”), family members may be able to sue for their financial losses related to care, guidance and companionship suffered as a result of the victim’s injuries. These FLA claims are subject to a $15,000.00 deductible. Where the claim exceeds $50,000.00, then the deductible does not apply. There is no deductible in situations where death occurs as a result of the accident.
Family members that are eligible are spouses, children, grandchildren, parents, grandparents, brothers and sisters of the victim.
The types of damages recoverable in a claim under the FLA may include:
- actual expenses reasonably incurred for the benefit of the person injured or killed;
- money damages for the loss of income of the person injured or killed;
- actual funeral expenses reasonably incurred;
- a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;
- where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, 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 that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred. R.S.O. 1990, c. F.3, s. 61 (2).
The Effect of the Plaintiff’s Actions or Inactions
In some cases, an injured person’s role in causing an accident (by contributing to it) or their inaction after being injured (by not seeking medical treatment), can diminish the amount of damages available in a personal injury case. Ontario recognizes contributory negligence, which is where the plaintiff’s claim to damages may be reduced if the plaintiff has failed to take reasonable care for his or her own safety, and his or her own negligence has contributed to that loss. In that case, the plaintiff’s right to fully recover for that injury or loss may be correspondingly affected. Some examples of where reductions have been imposed by courts in motor vehicle accidents are:
- Plaintiffs who fail to wear seatbelts may be found 15% to 25% contributorily negligent, but only where the defendant can prove that proper use of a seatbelt would have prevented or reduced the injury, and
- Plaintiffs who fail to wear helmets on bikes or motorcycles can be found to be 10% to 15% contributorily negligent. Here too, the defendant must prove that the use of a helmet would have reduced or prevented the injury; and
- Plaintiffs who are impaired by alcohol or other drugs, as well as willing passengers with impaired drivers, and are injured in a motor vehicle accident can be found to be 25% to 45% contributorily negligent.
A plaintiff also has the duty to mitigate his or her damages. Plaintiffs must take reasonable steps to minimize or mitigate the financial impact of the harm caused by the accident. If an injured plaintiff does not seek medical treatment or perhaps vocational job placement retraining when it is not unreasonable to do so, a damage award might be significantly reduced. I cannot stress how important it is for you to seek medical treatment.
Conclusion
Personal Injury Law is a nuanced area that requires vast knowledge of both tort and insurance laws. It is important that you seek legal representation if you are an injury victim.
[1] These deductibles will be indexed annually according to inflation.
[2] Evaluation Committee for the Mandatory Mediation Pilot Project, Final Report – The First 23 Months, (Queen’s Printer 2001) at 20.