Entitlement to Non-Pecuniary Damages in Tort Claims – Pain and Suffering and Loss of Enjoyment of life

Commencing a tort claim against the at-fault party of a motor vehicle accident enables the injured party to claim for additional income losses not covered by their accident benefits provider, including out-of-pocket medical and rehabilitation costs. A tort claim also allows an injured party to seek non-pecuniary damages for pain and suffering and loss of enjoyment of life as a result of the accident.

Tort claims are intended to compensate the injured party for what was lost due to the accident or injury; thus, they are classified as “compensatory”, with the goal to put the injured party in a position they would have been if the accident never happened. However, it is difficult to place a dollar amount on pain and suffering or the inability to enjoy life because of accident-related injuries, which is why these damages are referred to as “non-pecuniary”. In order to provide consistency in determining when an injured party will be entitled to such non-pecuniary damages, the law has created a “threshold” requirement and the application of deductibles. It’s important to consult with a tort claims lawyer as soon as possible to understand your rights.

The exact interpretation of the “threshold” is constantly evolving as a result of new court decisions dealing with this topic and changes to the regulations under the Ontario Insurance Act. Overall, in order to sue for pain and suffering the injured party must have sustained a certain level of impairment. The injuries sustained in the accident must have resulted in:
• Death;
• Permanent serious disfigurement (e.g. loss of a limb or scars); or
• Permanent serious impairment of an important physical, mental or psychological function.

If this threshold is not met the injured party is not entitled to non-pecuniary damages. The key requirement is that the accident injury is permanent.

If the serious and permanent threshold is met, an award of damages for pain and suffering is then subject to a potential deductible. In Ontario, there is currently a $30,000.00 deductible from the amount of damages the injured party would otherwise receive if the non-pecuniary damages are determined to be less than $100,000.00. For example, if you are awarded $70,000.00 for pain and suffering, the $30,000.00 will automatically be applied. Thus, you will only receive $40,000.00 in damages. On the other hand, if you are awarded $100,000.00 or more, the deductible will not apply and you will be entitled to the full amount of the damage award.

This demonstrates how the law in Ontario is limiting damages in tort claims and setting strict standards to be applied to flush out more minor claims. The general view of the courts is that damages for pain and suffering should be viewed as simply providing additional money to make life more endurable, since the injured party will already be compensated for future loss of income and future care costs. It is rare to see a non-pecuniary damages award exceed an upper-limit of $300,000.00

If you are seriously injured in a motor vehicle accident, the expertise of a tort claims lawyer will be required to assess your case and determine whether you are entitled to make a claim for non-pecuniary damages. Our tort claims lawyers are always up-to-date on changes in the law and the necessary evidence required to meet the strict “threshold” for non-pecuniary damages.