Understanding Pain And Suffering In Personal Injury Cases – Litigation, Mediation & Arbitration

Loss at some level follows any personal injury. This can be the loss of physical or mental abilities, the loss of income during a period of rehabilitation and recovery, or even the loss of human life.

In a personal injury lawsuit, a victim will typically seek compensation for these losses by filing an action for damages in the Superior Court of Ontario against a party whose negligence caused or contributed to the injury to the victim.

Sometimes the damage calculation is relatively simple; however, in more complicated situations, the damage calculation can be very complex. If a person is unable to work, a claim is made for the amount of lost earnings. Medical expenses in excess of what the Ontario Health Insurance Plan and a private or employer-based plan has to pay are usually added to the entitlement. And if a person becomes severely disabled and in need of care, experts can help calculate the cost of future care, as well as the current value of potential future loss of income that is expected. All of these losses are considered “money losses”.

Other damage – so-called “immaterial” damage – must also be quantified. The damages that result from such losses are typically referred to as “general indemnity” and “loss of life benefits”. In the event of more serious injury or death, family members can make claims for their own damage resulting from the injury or death of the victim. These are referred to as “family law claims”. Measuring the value of pain and suffering or the value of life to family members of someone who dies as a result of an accident can be challenging. However, there are well-established principles in this regard, some of which are discussed below.

What is pain and suffering in the eyes of the law?

When a person suffers personal injury, there is an actual permanent or temporary loss of mental, cognitive and / or physical abilities. Pain and suffering refer to the physical and emotional or mental stress or agony caused by that injury and any subsequent disability associated with the injury.

Although the Supreme Court of Canada has found pain and suffering analytically different from other intangible types of harm, such as loss of convenience and loss of life expectancy, “they overlap and merge at the margins and in practice”. The court argued, “To suffer pain certainly means to lose the comforts of a happy life at this time. If one loses years of one’s life expectancy, one loses all the comforts for the lost time and causes mental pain and suffering in contemplation. “This prospect.” 1

Some examples of pain and suffering are physical pain and impairment, scarring and disfigurement, loss of quality and enjoyment of life, depression, anxiety, cognitive dysfunction, and loss of aspects of a relationship (e.g. partnership, leadership, care, and marital intimacy).

Why did the Supreme Court of Canada put restrictions on moral harm?

In a seminal trilogy of cases in 1978, the Supreme Court of Canada set a ceiling on non-pecuniary damages for pain and suffering. Since immaterial losses are directly irreplaceable, the judges argued that a monetary reward has a valuable function in providing adequate comfort (making life more permanent) to a person for what has been lost in the only possible way. In other words, since monetary damage cannot really “replace” the damage qualitatively, a quantitative upper limit must be set. This is in contrast to other conceptual approaches that have been considered in the context of assessing general harm. In such an approach, every human ability is treated as property with an objective value. Another approach assesses the personal loss of human happiness by a specific victim.

While the Court has suggested that functional awards should be consistent, accessible, and predictable, that does not mean that personal circumstances should not be factored into the award. For example, if an amateur pianist loses a finger in an accident, he will experience a different sense of fear than a person whose occupations and interests do not require the use of a finger to such a nuanced degree.

Given the skyrocketing prices for personal injury in the US at the time (1970s), and observing a similar trend in Canada, the Supreme Court justices decided to stabilize these general claims for damages by placing a limit of $ 100,000 ( or “upper limit”). for such damage, subject to exceptional circumstances. They argued, “When looking at non-pecuniary damages from a functional point of view, it makes sense not to award large sums when a person is properly provided for future care for their injuries and disabilities.”

Originally set by the Supreme Court of Canada in 1978, the $ 100,000 limit has been adjusted for inflation every year since then and is currently over $ 400,000 for the most severe impairments

Are compensation for pain and suffering restricted in any other way?

If a person is injured in a car accident in Ontario, there are two other ways to limit compensation for pain and suffering. The Insurance Act stipulates that a person can only receive non-material damage (pain and suffering) if their damage reaches certain thresholds set by a judge. In order to cross the threshold, the injury must lead to death, permanent and severe disfigurement or permanent and severe impairment of an important physical, mental or psychological function. Aside from catastrophic injuries, exceeding this impairment threshold can pose significant challenges.

Even if the damage suffered by an injured party in an accident meets the threshold, the Insurance Act provides for a statutory deduction for the award of immaterial damage. For 2021, the deductible is $ 39,754.31 (and half that amount for non-fatal family law claims) .3 However, this deductible is waived if the amount of the non-pecuniary damage is $ 132,513.28 (and half that amount for non-fatal family rights claims) exceeds claims).

How can I determine the extent of my pain and suffering?

As you deal with your personal harm, you will see how your life has been affected by your accident. Unfortunately, we often don’t know what we’re missing until it’s gone. If you have one of our personal injury attorneys deal with your case, we will help you calculate your past and future financial losses and evaluate your compensation for pain and suffering.

At Gluckstein Lawyers, we go far beyond just preparing your case. And in the most serious cases, our team will connect you with resources to help you manage your grief, identify support groups you may want to join to share your experience, and advocacy organizations to suggest ways to contact You can adapt or overcome any newly discovered limitations. It is part of our commitment to all-round care.

Footnotes

1 1978 CanLII 1 (SCC) | Andrews v. Grand & Toy Alberta Ltd. | CanLII

2 Statistics | McKellar Structured Settlements Inc.

3 https://www.fsrao.ca/media/2516/download

The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.