When somebody is injured due to the negligence of others, whether the injuries stem from a motor vehicle accident, a slip and fall accident, a dog bite, a defective product or some other incident, that person can claim compensation for pain and suffering. Lawyers often refer to this compensation as non-pecuniary general damages (to contrast them with pecuniary losses such as income loss, medical expenses, etc.)
The Limitations on Pain and Suffering Compensation in Canada
Some people aren’t aware that the Courts have put an upper limit on pain and suffering damages. In fact, many new clients have asked us about the famous American case of a woman who received burns from extremely hot McDonald’s coffee. While those new clients were aware that the woman received a seven figure award for her pain and suffering at trial, they aren’t aware that the award was reduced on appeal to a much lower, six figure amount. Furthermore, they don’t know about a trilogy of cases in Canada in 1978 which set an upper limit on pain and suffering awards. With inflation, that limit today is slightly over $360,000, and that level of compensation would be reserved for cases involving quadriplegia and other types of very, very serious injuries.
How the Courts Determine Pain and Suffering Compensation
Clients often wonder about what amount of compensation they will receive for pain and suffering and the short answer is: it depends. Obviously, the more serious an injury, the more compensation a person will receive. Age is another factor, as most Courts will award more to a younger person who is injured than one who is older. That is because the younger person will suffer with his/her injuries for a longer period of time than a senior citizen. There are some cases where judges have strayed from this general rule, citing the fact that some seniors have had their “golden” (retirement) years ruined by an unnecessary accident.
The Role of Contributory Negligence in Injury Compensation
Another factor that affects a pain and suffering award is the degree to which the injured party was responsible for his/her own injuries. For example, a person severely bitten by a dog will receive compensation for their emotional and physical injuries, but if he/she were attacked by the dog because he/she had been kicking it, then the compensation would be reduced by the Court’s analysis of the extent to which the injured party brought the attack on themselves. This is referred to as “contributory negligence”. Another example would be a person who falls through an open manhole while walking. In such a case, the Court may hold the City 50% responsible for not replacing the manhole cover, and hold the pedestrian 50% at fault for not looking where he/she is walking.
Special Factors in Motor Vehicle Accident Compensation
There are special factors involved in motor vehicle accident damages that victims need to be aware of. One is the fact that money for pain and suffering is only available in cases where the injured party suffers long-term disfigurement or physical or psychological injuries, where the disfigurement or injuries have a serious affect on his/her daily life. This is often referred to as “the threshold test”. Therefore, if you are hurt, but fully recover within a few months’ time, you may not be eligible for pain and suffering compensation, no matter how much you suffered in those few months.
Understanding the Statutory Deductible for Pain and Suffering Awards
Another factor is a statutory-based deductible, which is currently $30,000 where pain and suffering compensation is assessed at trial at $100,000 or less. What this means is that a jury awarding you $85,000 for your pain and suffering lets you walk away with only $55,000. To make matters worse, the recent Ontario government budget has amended the deductible so that it is indexed to inflation, meaning that it will grow as years go by. This will result in even lower net figures to innocent accident victims.
Why You Need a Personal Injury Lawyer to Maximize Compensation
If you are hurt due to somebody else’s negligence, whether in a car accident or otherwise, speak to an experienced personal injury lawyer right away. Our firm’s lawyers know how to utilize experts to build up your case and maximize the damages you are ultimately awarded for pain and suffering, and also how to minimize or eliminate any reduction in your award for contributory negligence or the statutory deductible.
