Understanding Damages in Personal Injury Cases in Ontario
When an accident victim meets with a personal injury lawyer for the first time, the same questions often come up: Do I have a case and if I do, is the case worth pursuing? That is always a difficult question to answer in the early days of putting a case together. Let alone in the first meeting.
Calculating the fiscal impact of an accident takes investigation and time. A host of individuals and specialists need to be consulted along with your physicians and therapists to determine how your accident will truly affect you in the long term.
It is a time-consuming and expensive process that could take months, and in complex cases, even years. For this reason, you should find an experienced personal injury lawyer as soon as possible to ensure the best possible outcome for your case.
How damages are assessed — contributing factors
The most common personal injury cases result from motor vehicle and slip and fall accidents. If damages are awarded in such cases, it is usually the victim being compensated by the party who is legally responsible for the accident.
Often, the payout comes through insurance companies. In the majority of cases, the amount of damages is agreed to by way of a settlement without ever going to trial.
To reach the dollar value attached to a claim, several factors must be considered, including:
- the nature and severity of the injuries
- the cause of the injuries
- how the injuries will impact your life
This last point encompasses everything from your career to your daily chores and to your leisure activities.
After a review of the relevant medical records, your personal injury lawyer will be able to compare your case to previously decide cases in order to give you a better idea of what your settlement will likely be.
What are compensatory damages?
Compensatory damages are meant to compensate you for everything you have lost as the result of an accident. Although, there is no way to erase all the damage, it is an attempt to make you whole again (at least financially). The dollar value assigned is to make up for the devastating consequences of the accident (as much as money can)?
Some damages are rather simple to calculate. This includes things like medical expenses and property damage. But other damages are harder to pin down. For instance, how do you assign a cash value to emotional suffering or the inability to enjoy favorite pastimes because of an injury?
Common damages assessed in personal injury cases
Compensatory damages fall under several headings. They include:
- medical expenses
- pain and suffering
- lost income
- housekeeping/home maintenance
- property loss
- Family Law Act damages
Let’s take a more in-depth look at each of these.
Most personal injury cases claim medical expenses. This amount is to reimburse you for out-of-pocket medical expenses you have already paid for, as well as all future care you may need because of the accident.
Pain and suffering
Damages for pain and suffering are sometimes called non-pecuniary or general damages. These damages are to compensate you for the pain and suffering (past and future) resulting from the accident.
There is a limit to the amount you can be awarded for pain and suffering: This amount is approximately $340,000
The Supreme Court of Canada set the amount in 1978 (with subsequent adjustments for inflation) in the case of Andrews v. Grand & Toy Alberta Ltd. The reason given was that money cannot really make up for what an injured party has lost and the best we can do is provide a little extra money to make life a little easier. If you were hoping for a multi-million-dollar settlement, that only happens in America and on TV.
What is a threshold?
The term threshold comes up in a lot in cases involving automobile accidents. It refers to the legal requirements your injuries must meet to qualify for damages for pain and suffering.
To meet the threshold, the injuries you have sustained must result in permanent serious disfigurement (like scarring or the loss of a limb) or permanent serious impairment of an important function (physical, mental, or psychological).
You may also meet the threshold for pain and suffering caused by the death of a spouse or family member as the result of injuries sustained in an automobile accident.
Keep in mind that the threshold only applies to damages for pain and suffering. You will always be able to claim for medical expenses, lost income, etc. even if you do not meet the pain and suffering threshold.
A deductible may be applied to damages awarded for pain and suffering depending upon the settlement amount.
The deductible is waived if the settlement exceeds $126,610.07. If the amount is lower, a deductible of $37,983.33 is applied.
For example, if damages are awarded to the tune of $126,611.00, no deductible would apply. You would receive the whole amount. If the court only awards $50,000, you would only receive $12,016.67.
If an accident has affected your capacity to work you could be entitled to sue for lost income. This would allow you to recover money for earnings lost from the time of the accident up until your likely date of retirement.
If your injuries keep you from performing regular housekeeping and required home maintenance tasks, you may need to hire professionals to do all of that for you. The amount of your personal injury settlement, therefore, can be increased to help cover those expenses.
If you had property damaged in the accident, that can also factor into damages. This would include reimbursement for the expense of repairing an item to covering fair market value for items lost.
Family Law Act damages
If the injured party is a member of your family, you may be able to sue under Ontario’s Family Law Act (FLA) for expenses and losses incurred because of the accident. The deductible applied to FLA claims is $18,991.67. But the deductible is waived if the damages exceed $63,304.51 or the injured party dies because of the accident.
Eligible family members include the victim’s:
FLA claims can cover:
- expenses incurred for the benefit of the victim
- the victim’s lost income
- funeral expenses
- travel expenses to visit the victim during treatment/recovery
- loss of income allowance for family members who provide caretaker services for the victim
- compensation for loss of guidance, care, or companionship that you could have expected from the victim had the accident not happened
What is contributory negligence?
The discussion so far has assumed that the third party is 100% responsible for causing the accident. However, in practice, that is not always the case.
If you had a role in causing the accident that injured you, the damages you are awarded could be reduced accordingly. This is especially true if:
- you did not take reasonable care for your own safety, or
- your negligence contributed to the loss
If you were not wearing a seatbelt in a car accident, your settlement could be 15%–20% lower if a seatbelt could have prevented or reduced the extent of your injury. If you were not wearing a helmet while riding a bike or a motorcycle, that could impact your settlement by 10%–15%. If you drove impaired, either by alcohol or drugs, or if you were a willing passenger of an impaired driver, your contributory negligence could be as high as 25%–45%.
As a plaintiff in a personal injury case, you must be proactive. You should seek medical treatment as soon as it is reasonable to do so. The damages eventually awarded could be reduced if you do not.
In summation . . .
What is your case worth? The answer to that question depends on so many factors that it is impossible to guess. Every case is different.
If you have been injured by another party, you should seek legal representation as soon as possible to get a proper assessment of the damages that might be owed to you.
Have you been injured?
With over 175 years’ worth of combined experience in personal injury law, Mackesy Smye is well-aware of the problems you have to deal with after being injured in an accident.