Injury in an Accident
After an injury in an accident that was not your fault, you may be impaired, in chronic pain, and have losses that will impact you the rest of your life, such as the death of a loved one. Unfortunately, when it comes to pain and suffering damages in Ontario, courts often have limits on the maximum amount they can award for such damages. Unfortunately, this can lead to difficulties for those dealing with the pain. It is possible the maximum amount awarded is not enough to cover their damages or the medical costs associated with an injured person’s care may be significantly more than the pain and suffering damages awarded by the insurance company. This means that the person who was injured due to someone else’s error pays the price for that error.
Calculating Compensation
After an accident and a severe injury, you may question what methods they will use when the insurance company determines pain and suffering damages. The fact is that there is not really a definitive way that insurance companies calculate damages. You want to be compensated for your physical pain and emotional distress which can involve mental anguish. Unlike in the United States where injury victims receive large settlements, the approach in Canada is different. There is an unspoken objective throughout the courts in Canada to compensate victims but avoid excessive awards. Pain and suffering damages in Ontario are designed to hold those who cause injury responsible without awarding so much that settlements become a burden on society. The compensation package is designed to be fair and reasonable, and often attempts to assess the substantial damages and the subjective valuation of the suffering, which may include non-economic damages of an intangible nature. The attorney works to maximize the recoverable amount, sometimes needing to prove the documented and even chronic suffering of the plaintiff through expert testimony dependence. This attorney may have to litigate the case, pursuing the maximum amount by evaluating the compensable damages.
Legal Precedent
More than 30 years after the case, pain and suffering damages in Ontario still use one case as the defining authority. J.A. Andrews, Dorothy Andrews, Ivan Stefanyk v. Grand & Toy Alberta Ltd., and Robert G. Anderson established a soft limit on what could be awarded for pain and suffering damages except for in exceptional circumstances. As a result of the decision, many in Canada believe you cannot receive compensation for pain and suffering. However, Canadian courts have awarded these damages as part of pecuniary damages rather than non-pecuniary which have strict limits. In the precedent-setting case, the courts set a limit of $100,000 for non-pecuniary losses, although the limits have been increased over the years.
How Does an Insurance Company Determine Pain and Suffering Compensation
When an insurance company determines damages for pain and suffering, they often take into account that courts will offer higher compensation to victims whose injuries are life-altering regardless of the limits on non-pecuniary damages. One method for increasing the amount received for pain and suffering is to be sure all liable parties are included in the claim. This means you may need to file a claim against someone individually, their insurance company, and possibly even the manufacturer of equipment that may have failed, leading to an accident.
Family Compensation
It is also possible that courts will provide pain and suffering damages for an entire family. This may occur if a family member must make sacrifices, whether financially or physically, to care for the victim of an accident. In this case, the family may be awarded damages for the role they would need to play in providing care for the person who was injured. Those damages could cover rehabilitation, care, and treatments for the remainder of the injured person’s life.
Insurance Limits
If your damages from pain and suffering were caused by an automobile accident, keep in mind that there may be a limit on insurance liability as well. For most accidents in Canada, there is a liability limit and, when insurance companies determine liability for pain and suffering, they often insist that there must be a serious and lasting injury. This means it is difficult to get an insurance company to pay a claim higher than the statutory deductible unless injuries are significant.
Hire a Lawyer
Because of the limits placed on damages by the Canadian government, it is critical that you speak to a lawyer if you have been injured in an accident in which someone else was at fault. Ontario courts consider many factors when determining a pain and suffering award. They will review the extent of the injuries, impairments that may be lifelong as well as interpret personal injury laws to be sure the correct calculations are used.
If you have been injured in an accident that was the fault of someone else, contact us today to learn how we can help. You can arrange for a consultation by calling or filling out the easy online form to learn more about how we can get you the compensation you are entitled to under the law.
