Accident victims have the common law right to seek recourse in our courts for pain and suffering damages where they have been injured by the negligence of another. In such a lawsuit, this compensation is referred to as general or non-pecuniary damages, because there is no way to put a specific amount on an individual’s pain or suffering compensation. This was made clear by the Supreme Court of Canada in 1978 in a trilogy of cases before it.
If you’ve been involved in an accident, speak with an accident lawyer as soon as possible to understand your rights and build a strong case in your favor.
Pain and Suffering Claims
In the trilogy of cases decided in 1978 (Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, Arnold v. Teno, [1978] 2 S.C.R. 287, Thornton v. School Dist. No. 57 (Prince George), [1978] 2 S.C.R. 267) the Supreme Court of Canada imposed a cap of $100,000 (as of 1978) on non-pecuniary damages. This decision was made on the basis that, as a matter of public policy there should be a limit to the amount of compensation awarded for pain and suffering. The Supreme Court stated at that time:
“The sheer fact is that there is no objective yardstick for translating non-pecuniary losses, such as pain and suffering and loss of amenities, into monetary terms. This area is open to widely extravagant claims. It is in this area that awards in the United States have soared to dramatically high levels in recent years.
… There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions, but the award must also of necessity be arbitrary or conventional. No money can provide true restitution.”
(Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 261).
Pain and Suffering Damages
It is important to understand that the cap on non-pecuniary damages does not affect the amount of compensation that can be awarded for the cost of future care or loss of income (those are often the largest part of an award in serious injury cases), but only limits compensation for pain and suffering.
The cap was $100,000.00 in 1978 (January 19, 1978, was the date of the three decisions mentioned above) and is adjusted for inflation to determine the cap at the time of trial. The courts in Ontario will apply the cap but will adjust for inflation. As of 2022, the cap is around $418,000, due to inflation.
It is important to note that the cap amount is considered the appropriate amount to award the most seriously affected claimant in existence i.e. if a young, healthy, and active person is rendered quadriplegic and/or brain damaged would only be entitled to the amount of the cap on account of non-pecuniary damages. In Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 the claimant was a 21-year-old who was rendered, a quadriplegic. The Supreme Court of Canada stated:
“I would adopt as the appropriate award in the case of a young adult quadriplegic like Andrews the amount of $100,000. Save in exceptional circumstances, this should be regarded as an upper limit of non-pecuniary loss in cases of this nature.”
(Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 261).
In Arnold v. Teno, [1978] 2 S.C.R. 287, decided at the same time as the Andrews case, the plaintiff Arnold was a 4 ½-year-old girl who suffered brain injuries with severe physical and mental impairment, but was also ruled to be subject to the cap.
In Thornton v. School Dist. No. 57 (Prince George), [1978] 2 S.C.R. 267, also decided at the same time as the Andrews case, the plaintiff Thornton was 18 years of age at the date of trial. He was rendered a quadriplegic during a physical education class and his injuries left him wholly dependent upon orderly assistance for his day-to-day needs. The British Columbia Court of Appeal approved of the trial judge assessing $200,000.00 (1978 dollars) as compensation for physical and mental pain and suffering, loss of amenities and enjoyment of life, and loss of expectation of life. The Supreme Court of Canada reduced the award under this heading to $100,000.00 for the reasons expressed in the Andrews case.
Pain and Suffering Compensation
Although damages in each case must be considered in light of the cap on non-pecuniary damages, a functional approach to quantifying non-pecuniary damages is required and damages must be assessed in light of the plaintiff’s particular circumstances. It is improper to directly compare the injuries of a particular plaintiff to those of the plaintiffs in the 1978 trilogy for the purpose of making an award.
