Could trial lawyers take a run at a 40-year-old cap on pain and suffering awards? Canadian Underwriter
A 40-year Canadian limit on pain and suffering rewards may be out of date, suggests a personal injury attorney.
The Supreme Court of Canada imposed a $ 100,000 limit on non-pecuniary damage premiums in 1978, Personal Injury Law Firm Himelfarb Proszanski reported. It was intended to limit “largely extravagant” liability claims.
This cap is tied to inflation so it is more than $ 350,000 in today’s dollars. It was established by three judgments from the Supreme Court of Canada: Teno v Arnold, Thornton v 57 School District, and Andrews v Grand & Toy. Teno and Andrews originated from automobile personal injury suits, while Thornton originated from a student injured in physical education class.
Since the cap applies only to non-economic losses, it has no impact on medical and rehabilitation costs, care and income losses.
“If you’re reading this  In trilogy cases, the justification for this policy decision was that plaintiffs would receive full compensation for all other losses, and this is not currently the case in Ontario, particularly in automobile crash cases, ”said Allen Wynperle, president of the Ontario Trial Lawyers Association in Hamilton said in a recent interview. Ceilings and deductibles set in provincial legislation are among the reasons he cites.
If a judge today approves Wynperle and makes a precedent decision that removes the 1978 cap, it could hurt the severity of liability insurance claims, as non-financial damage could soar well above $ 400,000.
The reason for the cap was that plaintiffs would be compensated for economic losses if harm other than pain and suffering occurred, Wynperle said. So there was no need to award $ 100,000 in pain and suffering in 1978.
However, some other measures since 1978 to manage damage costs could mean the justification for the cap no longer includes water, suggests Wynperle. One example he cites is the Ontario deductible for pain and ailment premiums due to automobile claims.
That deductible is now $ 38,818.97, reports Campisi Law. This means that if a court assigns $ 39,000 to your client, that client will actually receive $ 181.03 once the deductible is factored in.
“There are many provinces that now have various restrictions on making claims that are similar to Ontario. This is kind of a general insurance law theme that has been changing over the years, ”said Wynperle.
In 1972 James Andrews was riding a motorcycle in Edmonton when he collided with a Grand & Toy van. Andrews was almost 100% disabled. He was awarded more than $ 1 million by the Alberta Court of Queen’s Bench, but that award was cut in half by the Alberta Court of Appeals. Most of the cut was in the cost of future care, but the appeals court also reduced the pain and suffering award from $ 150.00 to $ 100,000. (These figures are not adjusted for inflation). This pain and damages decision was upheld by the Supreme Court of Canada.
“There is no objective measure of converting non-financial losses such as pain and suffering and loss of convenience into monetary amounts,” wrote Brian Dickson, Justice of the Supreme Court of Canada in Andrews in 1978, explaining why the cap should be $ 100,000 . “This area is open to largely extravagant claims …
“When looking at damage for intangible loss from a functional perspective, it makes sense that large amounts should not be forgiven when a person is adequately cared for with future care for their injuries and disabilities,” added Dickson.
A similar decision was made in Teno when a child was hit by a car in Windsor in 1969.
The $ 100,000 limit was based in part on the doctrine of joint and several liability, suggests David Williams, a partner at Harrison Pensa in London, Ontario. Williams has represented both defendants and plaintiffs in lawsuits. A change in the rules on joint and several liability currently being discussed in Ontario could obviate the justification for the cap, trial lawyers say.
This is how joint and several liability works: suppose a plaintiff injured by a drunk driver sues both the driver and the bar that served alcohol to the driver. The court holds the bar responsible for 20% and the drunk driver for 80%. The bar could be hooked for much more than 20% if the defendant responsible for the other 80% cannot pay the amount owed.
Ontario Prime Minister Doug Ford recently promised to review the joint and several liability provisions of the provincial Negligence Act. This was partly due to concerns from local authorities, which are sometimes added as defendants by plaintiffs who claim that poor street maintenance contributed to accidents.
As it stands, the common rule helps ensure that severely injured claimants can at least recover from someone. However, if new restrictions are imposed that limit the harm to the defendants only to their portion of liability, that will change one of the foundations for the 1978 trilogy, Williams suggested in a recent interview.
“You can be sure that inventive attorneys will return to the Supreme Court of Canada and say, ‘Now we want to get back $ 5 million for this violation, which is capped at $ 390,000, because we don’t add those losses to the Way to make amends. We used to do that, ”Williams said in an interview last March about the reform of joint and several liability in Ontario.
Future Care Awards are intended to “make physical arrangements for assistance, equipment and facilities directly related to the injuries,” wrote Justice Dickson in Andrews in 1978. “Extra money to make life more bearable should then be viewed as more general physical precautions beyond those directly related to the injuries. The result is a coordinated and interlocking basis for compensation and a more rational justification for compensation for non-financial losses. “
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