’Damages’ is a term used to describe the monetary compensation awarded to victims of successful Personal Injury claim. They are calculated and granted by the court following the case if the injured party is successful in proving their claim. The Damages are an effort to reimburse the victim, as best as money can, for losses suffered as a result of their injury. These losses could be economic, such as their ability to work for a period of time, or non-economic such as physical injuries. In conducting their calculations of the amount and types of Damages to award, the court asks itself what amount would help put the victim in the same position they would have been had the injury not occurred.
There are numerous categories under which damages can be claimed and assessed. The main categories are described below.
This category encompasses a large list of direct out- of-pocket expenses or losses incurred or reasonably anticipated to be incurred as a result of the injury. Examples of these losses include:
Income Loss, resulting from the inability to work after the incident
Loss of Future Earning Capacity, if the injury limits the victim’s ability to continue working
Medical and Rehabilitation Expenses, which includes incurred and anticipated expenses
Cost of Required Assistance, such as home care assistance, mowing the grass
Repair Costs, for example repairs of a car if the injury was the result of a car accident
These are the damages commonly known as “Pain and Suffering”. They compensate for losses that don’t come with a price tag. In calculating the amount of these type of Damages to award, the court considers how the injury affected the victim’s life. For example, injuries that diminish a victim’s ability to go about their normal or daily activities will entitle the victim to more compensation, particularly if recovery is prolonged.
It is important to recognize that there are various ‘caps’ placed on this category of damages for certain types of actions. These caps are set either by legislation, or by the court and the caps constantly adjusted for inflation.
1. Car Accidents: Many provinces have legislated a cap on the amount of non-pecuniary damages victims can receive for “minor accidents”. The definition of ‘minor accident’ is a very technical legal one, so it is critical that you speak to a lawyer who practices in the area to understand your rights with respect to pain and suffering damages if you have been in a car accident.
2. General Non-Pecuniary Damages: In realizing that no amount of money can compensate for some types of injuries, the Supreme Court of Canada placed a cap on the most amount of money a plaintiff can be awarded for pain and suffering. At the time, the court ruled that no matter how serious the injury was, compensation for “Pain and Suffering” was to be capped at $100,000. As the amount is adjusted for inflation, todays cap is much greater (more than $300,000). Nonetheless, the full amount is reserved for the most serious injuries like paraplegia, loss of limb and extensive brain damage.
There is a third general category of damages. As the title sounds, this category is intended to punish the wrongdoer. Punitive damages are typically awarded to deter truly offensive conduct, perhaps an employer who knew its employees were in serious peril but forced them to continue working for financial gain. They are rarely awarded in negligence cases where the incident is typically the result of an accident or carelessness.
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By: Amanda Toulany, J.D., Articled Clerk
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