Published by Programme B
In 1978, Canada’s Supreme Court put a cap on the amount of damages that could be awarded in personal injury cases. The cap applies to awards for pain and suffering and stands at approximately $340,000.
This figure represents the upper limit and is typically only applied to the most extreme cases, and for any case, there are many factors that go into deciding how the cap is applied. Here’s what you need to know.
Understanding the basics
Personal injury cases are brought when a person is hurt because of another person’s negligence. The injured party is awarded a monetary judgment that is designed to cover medical treatment, living expenses, and other costs and losses associated with a serious injury.
The court may also award a certain amount for pain and suffering. In order to assess a fair personal injury claim, lawyers and the court will have to consider quite a number of factors, including:
- The injury itself and its physical impact
- What caused the injury
- How the injury has impacted the victim in work, home life, and recreation
- The predicted future for recovery
- The emotional impact of the injury
The vast majority of personal injury cases are settled out of court. However, an injured person should still retain a personal injury lawyer to help them negotiate the settlement and determine a fair compensation.
The cap on pain and suffering
Compensation for medical bills and lost time at work are fairly easy to calculate. But pain and suffering are far more intangible. In the 1978 ruling, the Supreme Court held that pain and suffering awards cannot be considered compensatory because money does not actually relieve pain and suffering, and because the person will already be compensated for medical bills and loss of income by insurance companies.
This award is all about making life a bit easier to live rather than directly compensating for something. In order for anyone to receive a pain and suffering award, their injuries must be severe and permanent at a high enough threshold to satisfy the court. This same threshold does not apply to claims for loss of income or earning ability.
Understanding the deductible
Canada has a deductible for non-pecuniary damages — pain and suffering — of $30,000. This applies to all claims below $100,000. At $100,000 and above, no deductible is applied to the award. However, anything below that number will not be awarded to a plaintiff until the $30,000 is first deducted.
This means that, for all intents and purposes, pain and suffering claims that will not rise above $30,000 are not worth bringing forward. The stated purpose of this restriction, as well as the cap, is to keep Canada’s tort system from filling with questionable claims for extravagant amounts of money. Even so, many question whether the cap and deductible are really serving this purpose.
How the plaintiff’s actions affect the case
Canadian law recognizes contributory negligence. Contributory negligence is action or inaction on the part of the plaintiff that made the injury worse. For example, if the plaintiff did not get appropriate medical treatment right after the accident, and this made the injury worse, the court will take this into consideration and reduce any awards.
Other things a plaintiff might do that could cause the court to reduce damage awards would be failing to wear the proper safety equipment (such as a helmet or seatbelt), or being impaired by drugs or alcohol when the accident occurred (even if the accident was the other party’s fault). There are many moving pieces in any personal injury claim. The best way to be sure that you navigate it all successfully is to get the proper, experienced legal representation.
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