If you’ve suffered serious injuries in Ontario, whether in a motorcycle accident, slip and fall, assault, car accident, trucking accident, etc. – 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 comprised of different categories of compensation for damages that you are entitled to claim. Typically, you are entitled to claim for such damages (lawyers call them “general” and “special” damages) as:
- pain and suffering
- loss of enjoyment of life
- loss of amenities
- loss of an interdependent relationship
- loss of expectation of life
- loss of quality of duration of life
- past loss of income
- past economic loss
- future loss of income
- future economic loss
- loss of economic opportunity
- loss of competitive advantage
- housekeeping losses
- home maintenance losses
- future cost of case (outside OHIP and no-fault)
- compensation for family members’ losses
- compensation for family members’ lost income
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 who can help guide you through the process by making sure you are treating the right people, followed by appropriate occupational therapists, assembling 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 yourself 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.
What is pain and suffering compensation?
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 seek 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 they are 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 as you can with 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:
- Pain and suffering (physical and mental).
- Loss of quality or duration of life.
- Loss of interdependent relationships (the diminished likelihood to enter a permanent relationship with another person, Hodgins v. Street, 2009 CarswellBC 1369 (B.C. S.C.)).
- Loss of amenity.
- Loss of expectation of life.
How is an award for pain and suffering calculated?
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:
- The victim’s subjective pain and suffering;
- Loss of amenities;
- Loss of expectation of life;
- The age of the victim;
- The nature of the injury;
- The severity and duration of pain;
- Disability;
- Emotional suffering;
- The loss or impairment of life.
- The impairment of family, marital and social relationships;
- The impairment of physical and mental abilities;
- The loss of lifestyle and
- The victim’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff and
- Any other factor the court finds relevant to the plaintiff’s subjective experience of the functional loss.
Is there a cap on pain and suffering compensation in Ontario?
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
Is it the Defendant in a case that personally pays a pain and suffering award?
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 victim 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.
How will my Hamilton Personal Injury Lawyer present my pain and suffering case at trial?
Matt Lalande has been trying cases for 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:
- Photographs;
- Video and audio recordings;
- Computer-based evidence, such as PowerPoint presentations or animations.
- Maps.
- Graphs, charts and diagrams.
- Models and simulations.
- Experiments.
We have significant experience in trying cases, and we will be prepared if your case does not settle.
Our Hamilton personal injury lawyers can answer any question you have about pain and suffering compensation
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 be 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.