When conducting an intake with a personal injury client, the person will tell me about their accident and discuss their injuries. As I am thinking through their case in my role as a personal injury lawyer, they inevitably will ask “what is my case worth?”
While Edwards Pollard LLP does not provide ballpark amounts during these initial meetings, we will thoroughly review a person’s medical records and other information to see if pursuing a legal claim makes sense. Assessing damages in a personal injury case is complex and starts with understanding the different types of compensation that may be available.
General damages
Often referred to as “pain and suffering,” general damages are a monetary award meant to compensate you for what you lost because of the injury and involve putting a dollar figure on the implications and complications of the injury.
It’s important to note that there is an approximately $415,000 cap on general damages in Ontario. This limit is why we don’t see the same type of multi-million-dollar awards common in the U.S. For example, a Tennessee jury recently ordered American restaurant chain Cracker Barrel to pay a man $9.4 million after it found the company at fault for serving him a glass filled with a chemical instead of water.
In Ontario, the high end of the cap is reserved for the most serious of cases, usually involving catastrophic brain and spinal cord injuries. As a result, even if you suffer from significant, life-altering injuries, you may not feel adequately compensated by the average range of general damage awards. Depending on your situation, you may also claim several other categories of damages.
Medical and rehabilitation costs
A personal injury plaintiff can be compensated for medical and rehabilitation costs, including past medical expenses. If you were paying out of pocket for assistive devices or physical therapy, for example, you would be compensated for that.
We will also look to the future regarding what your medical equipment needs will be. For example, if you use a wheelchair because of your injuries, you may need a replacement or maintenance every few years.
Future rehabilitation often forms one of the more significant parts of a lawsuit. When you start factoring in both the cost of equipment and rehabilitation professionals, it adds up, especially when projected over the expected recovery time. In addition, if someone has a permanent impairment or disability, they will often require at least some form of rehabilitation — even if it is for maintenance — for the remainder of their lives.
Income loss
Income losses are the most prominent category of damages in most personal injury lawsuits. When there are economic losses because of an injury, they are usually significant. Past losses are somewhat easy to deal with because we look back to see what you were making before the accident, and then we look at what your earning capacity is up to that point. If you can earn some income but not the same amount, then we subtract that amount, and the difference is what your past losses are. It is important to note that if your injury results from a car accident, your past losses are limited to 70 per cent of your gross income. In comparison, future economic losses are paid at 100 per cent.
There are various scenarios when it comes to future losses. For example, suppose it is evident that you can never return to work because of your injuries. It is easier to calculate because we can take your current earnings and project them forward until an expected retirement date and adjust for contingencies like raises or promotions. We come up with a present value — a calculation that shows us if you were to receive a settlement now what the value of that money is in the future — which is the easiest way of calculating future economic losses.
However, we often see clients who can return to some type of employment. Sometimes it’s their own job, but they often cannot work in the same capacity as before the accident. For example, maybe a person worked overtime before but cannot take on that extra work and therefore suffered an economic loss. Those cases are more complicated because we have to look at their residual earning capacity, which can sometimes be an exercise of looking into a crystal ball.
If a plaintiff is 30 years old, we could be looking at 35-40 years of employment on the line, trying to predict what happens to this person. It’s hard to say if the plaintiff, who is still in the early stages of his or her career, was on a management or partnership track. You have to look forward by looking backwards at their academics and work history to get a sense of the likelihood of this person moving up in their career path the way they thought. There is typically pushback from the defence in these cases because there is no certainty in that exercise. It is all hypothetical at that point, which makes it challenging.
It can get even more complicated when we look at a client who has returned to his or her level of pre-injury income but has a higher risk of being unemployed in the future. This could be because they are no longer as efficient in the workplace as they were pre-injury or no longer able to do some tasks that they used to, like taking on overtime, which makes them less competitive than their peers.
In this situation, there is a type of income loss claim that can be made called Loss of Competitive Advantage. It is available to compensate you for losing your ability to compete for work with others in the workforce. The awards vary greatly, but the average amount is in the $50,000-$100,000-dollar range.
Out of pocket expenses
If you are picking up medication, seeing rehabilitation specialists or purchasing an assistive device and paying out of pocket, you can seek compensation for that shortfall. If you do not have a drug plan or benefits — or if it only covers a portion — these expenses can add up and can be recouped.
Housekeeping and home maintenance
This involves a person’s ability to conduct housekeeping and home maintenance. Suppose the plaintiff is typically responsible for outside maintenance of the home. In that case, their injuries may prevent them from gardening, shovelling snow or cutting grass, and they may have to hire someone to help.
If they are never able to cut grass or shovel snow due to their injuries, we need to account for the cost of a landscape company doing that weekly each year. The same goes for housekeeping. If you can no longer do household chores and have to hire help, you can be compensated for that expense.
Punitive, exemplary and aggravated damages
These damages are reserved for instances where a defendant’s behaviour is egregious enough that the court wants to impose an additional penalty for their conduct. These awards are punishment and are meant to act as a deterrent to the defendant and others from engaging in similar conduct.
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