By Matt Lalande in Legal Questions on September 22, 2020
If you’ve suffered serious injuries in Ontario, whtether in a motorcycle accident, slip and fall, assault, car accident, trucking accident ect. – you have the option of pursuing the person or company that did you wrong for compensation. This is called a “tort claim”. In a tort claim, and depending on the level of injury, your claim would be comprosed of differed categories of compensation, of damages that you are entitled to claim. Typically, you are entitled to claim for such damages (lawyers call then “general” and “special” damages) as:
These claims, depending on what you decide to file, must be proven by you. You have the onus of proving your losses when you advance a claim for compensation. This is why you need a highly experienced personal injury lawyer that can help guide you through the process by making sure you are treating with the right people, followed by appropriate occupational therapists, assembled a full and complete clinical file to present and hire the right experts (i.e. orthopedic surgeons, neurologists, physiatrists, life care planners, vocational experts and forensic accountants – and prove your case for you.
The important thing to remember when seeking damages – is that payment is not perfect. The theory of compensation is to help you restore you to as close as you were the day before the accident – but you will not be made whole. Canada’s highest Court has told us that when compensation is paid to a victim “there cannot be “complete” or “perfect” compensation. An award must be moderate, and fair to both parties. Clearly, compensation must not be determined on the basis of sympathy, or compassion for the plight of the injured person. What is being sought is compensation, not retribution.”
Now, people have asked us before – Is there a pain and suffering calculator? And the answer is no, there is not. And any website that tells you otherwise is completey incorrect.
Firstly, in personal injury actions, money cannot truly provide compensation for a victim’s permanent injuries or disfigurement – but it is the only type of compensation available – and that compensation is awarded by a Judge or Jury based on what is “moderate and fair to both parties”. That same Court told us that “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.”
It is a Court that must set a value on a person’s injuries, even though it is impossible to determine the precise amount of money required to restore the value of a damaged or lost limb or function, or permanent disfigurement, based on a thourough examination of other decisions and cases. There is no calculator that can do this. It simply does not exist.
Pain and suffering compensation is meant to provide financial assistance in recognition of a plaintiff’s losses in an attemtp to provide the injured plaintiff with money in which to make his or her injuries more bearable.
Lawsuits seeks to balance fairness and justice through compensation: the payment of money from the at-fault person or company to the victim, in order to restore matters to their pre-accident state, as best he can. Pain and suffering damages are part of a category of damages called non-economic or non-pecuniary damages – meaning not related to income or wage loss. They are damages which flow from a victim’s injuries that are not quantifiable in monetary terms. In other words, you can’t put a direct number on damages it as you can with a a debt, or a mortgage that was defaulted. In these cases, there is a “fixed number” you can sue for.
Non-economic or non-pecuniary damages include:
The aims of the functional approach to non-pecuniary damages is to compensate the plaintiff for the victim’s accident-related costs of future care and the victim’s distress of having been injured.
In setting the amount to be awarded, a Court should consider:
As a general rule, damages are not intended to punish the wrongdoer. The plaintiff should not receive a windfall award in excess of the value of her losses. For this reason, there is no limit to the damages for economic losses, but there is a cap to the damages available for non-pecuniary losses.
In 1978, a set of 3 cases were decided by our highest Court to cap pain and suffering awards at $100,000.00 (in 1978 money). This upper limit must be adjusted for inflation. As of the time this personal injury post is written, the current cap on pain and suffering in Canada is $390,883
No, it is the insurance company of the defendant that is retained to defend the person or company that caused your injuries – and it will be the insurance company that will pay the damages if the victims is successful in proving his or her losses. It is important for juries to know and understand that it is not the defendant who personally pays your compensation.
Matt Lalande has been trying cases to judges and juries since 2003. Your case will be fully prepared and no stone will be left unturned. Typically, our Hamilton personal injury lawyers retain a videographer to create a day in the life video to assist the jury in understanding your day-to-day life. We would call your friends and family to testify, coworkers as well as your family doctor. Every expert that we hire will also be called to testify on your behalf, such as an orthopedic surgeon, neurologist, vocational specialist, forensic accountant etc. We will use a significant amount of demonstrative evidence – With this type of evidence, the judge or jury is one degree closer to the evidence. Rather than using the oral evidence of a fact witness as an intermediary, a judge or jury uses his own senses to directly observe the evidence.
Demonstrative evidence can include:
We have significant experience in trying cases and we will be prepared if your case does not settle.
If you have any questions about pain and suffering compensation, or would like to discuss your particular situation, please call us nationwide at 1-844-LALANDE or local at 905-333-8888. We would happy to discuss your case, at no cost to you. Talking to us is always free. We have been serving the local community since 2003 including places like Ancaster, Burlington, Milton, St. Catharines, Grimsby, Niagara, Welland, Port Dover and all of the surrounding Hamilton areas.
I was a dental hygienist that suffers from really bad scoliosis. My insurance company ignored my doc & cut my benefits off & told me I could do “something”. Matt got me CPP Disability and and LTD settlement – I don’t know what I would have done without him.
My daughter was killed by a drunk driver and it forever changed all of our lives. It seemed that for two years time stopped. This was no an easy journey. Matt let me sit in on the discovery of the driver and boy, he never let up. In the end, our grand-daughter was taken care of and we were compensated for our loss – which we then donated to a cause we believed in.
I call Matt my knight in shining armour. After I was struck by a car while cycling and permanently crippled, he fielded all communications with my especially difficult and downright nasty insurance adjuster. Every step of my care was a battle and I did not have the strength to fight alone.
I lost my leg in a terrible motorcycle accident and Matt help me recover compensation I need because I could not work and the cost of prosthetics and rehab are out of this world. I don’t know what I would have done without him.
My brother ended up paralyzed after a car accident and Lalande did SO MUCH to help get things straight from him getting out of the hospital to all his care for life. We are so grateful for Matt & Heather. I don’t know how my family could have done this without them.
