What are “Special Damages”?
Calculation of damages is an intricate puzzle. “Damages” in legal context means an award of money meant to compensate for loss or injury. The sole goal of damages is compensation, as the law scoffs at the idea courts could become a place to make a profit. The Canadian authority on damages is a 1978 Supreme Court of Canada decision: Andrews v Grand & Toy, [1978] 2 SCR 229.
This judgment separates damages in two categories: 1. Special Damages; and 2. General Damages.
Special damages are expenses already incurred by the plaintiff, where we know what the cost to the injured party is; something where you would be able to show a receipt or invoice. This includes a) past loss of income and b) out-of-pocket expenses. Conversely, general damages are an estimate of amounts that can’t be easily put into dollars and cents (e.g., pain and suffering) or of future losses.
Let us look at this scenario
Adam was seriously injured in a slip and fall accident outside of work. Because of his injuries and constant severe pain, he cannot work in construction anymore. Adam needs medication that is not fully covered by his insurance, and he also needs physiotherapy, massage therapy and psychological support.
What are some things Adam can claim as special damages?
At the time of the mediation (when both parties discuss their view on the case to possibly enter into an agreement outside of court), Adam could claim for the loss of income he incurred from the day of his accident to the day of mediation; we know precisely what this amount is. Adam could also claim for his out-of-pocket expenses incurred because of his accident (medication, physiotherapy, massage therapy, psychological support).
Duty to Mitigate Damages
Adam would have to do everything in his control to mitigate his damages. This means Adam must ensure he rehabilitates as well as possible and as fast as possible. A defendant will have to pay for the injuries he has caused and their impact, but he will not be obligated to pay for “worsened” injuries caused by the accident that could have been prevented.
Special damages are a category of damages that can be claimed very easily if you keep all your receipts for the expenses you incurred because of your accident.
Our Ottawa personal injury and accident lawyers are experienced negotiators. They will work hard to get you the highest possible damages awards.
If you or someone you care about was injured in an accident, please contact one of our lawyers for a free consultation. We work on a no-fee-until-you-win basis. Call us at 613-315-4878.