Quinn Thiele Mineault Grodzki LLP, personal injury lawyers Ottawa, is always keeping up with developments in the law. Over the years, we have concluded that our clients have common inquiries when it comes to their case and in particular ask what factors are considered by the Court in the assessment of liability in a victim’s personal injury claim, including the assessment of general damages. This brief article discusses the factors considered in the assessment of a victim’s non-pecuniary damages (i.e., pain and suffering).
The Supreme Court of Canada, established that in 1978, a ceiling for the maximum value of non-pecuniary damages in personal injury cases. The Court’s decisions in the matters of: 1) Andrew v. Grand & Toy Alberta Ltd,  2 S.C.R. 229; 2) Thornton v. Board of School Trustees of School District No. 57 Prince George,  2 S.C.R. 267; and 3) Teno v. Arnold,  2 S.C.R. 287 are referred to as the “non-pecuniary trilogy”. The “trilogy” created an upper limit of non-pecuniary damages.
In the matter of Andrews, the plaintiff was 21 years old when he sustained catastrophic injuries in a motor vehicle collision. In Thornton, the plaintiff was 15 years old when he fractured his back and damaged his spinal cord. Lastly, Diane Treno was 4 years old when she was hit by a car. In these cases, all 3 plaintiffs suffered from quadriplegia and they were left with little more than life itself. By way of the “trilogy”, the Supreme Court of Canada established a clear upper limit for the amount of money that can be awarded for severe injuries.
In the matter of Andrew, the Honorable Mr. Justice Dickson stated: “I would adopt as the appropriate award in the case of a young quadriplegic the amount of $100,000.00. Save in exceptional circumstances, this should be regarded as an upper limit of non-pecuniary loss for injuries of this nature.”
Thus, the upper limit established by the “trilogy” is the first factor to be considered in the evaluation of the value of a victim’s claim for general damages. A personal injury cannot be worth more than the ceiling established by the Supreme Court of Canada (which amount is equal to approximately $335,000.00 in value for 2012), except in exceptional cases.
Accordingly, a personal injury – whether it is a fractured leg, a fractured arm or quadriplegia – can only be valued in 2012 between $0 and $335,000.00. It is helpful for a victim to understand that the assessment of the value of their general damages is in a way, “locked in” between those amounts. The following factors are then considered to assess whether the non-pecuniary award should be assessed closer to the lower limit or the upper limit. These factors are non-exhaustive, but are commonly considered and are considered by the Court in the assessment of non-pecuniary damages:
- The nature of the injury (i.e. are we dealing with a soft tissue bruising, a fractured wrist or a case of severe brain injury);
- The age of the victim (for how long will the victim have to live with pain and suffering);
- The severity and duration of the pain (is the pain constant v. transient, did you suffer for 3 months, 5 months or is the pain present every day, is the pain bearable or excruciating, etc…);
- The level of disability, if any, that the victim must now live with (i.e., can’t use your limb, you suffer from 5% arm impairment, you can’t walk without a cane, etc…);
- Emotional suffering (has your bodily injury caused you to develop a psychological condition such as depression, anxiety, post traumatic stress disorder);
- Loss or impairment of life (i.e., did the injury result in death or does the victim now require continuous care);
- Interference with family, marital or social relationships (i.e., breakdown of the victim’s marital relationship/divorce, victim lost touch with his/her friends and family due to their injury);
- Impairment of physical and/or mental abilities (i.e., cannot care for him/herself); and
- Loss of lifestyle (i.e., victim was an active person involved in social, recreational and sports activities and now the injury does not allow them to participate in some or all of those activities.)
These factors are all considered by the Court in the assessment of the value of a victim’s personal injury claim. To learn more about issues affecting victims of accidents and to obtain a free assessment of your case, please contact us.
At Quinn Thiele Mineault Grodzki LLP, we work with many different specialists. Let our experienced and knowledgeable personal injury and accident lawyers represent your interests and maximize your compensation. We don’t charge until we win your case. We win injury cases every day! We provide free case assessments.
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