When I meet with a personal injury client for the first time, the question I hear most often is: "Thanks for meeting with me, but how much money am I going to get?"
The question is understandable.
An action can take years to resolve, it is an emotionally demanding process and it is expensive. Unfortunately, this is one of the hardest questions to answer at a first meeting.
When someone is injured, they often do not know in the days and weeks after the injury how much it will affect their life. For instance, some individuals make remarkable recoveries after sustaining a brain injury. Others can become more impaired over time. In many of these cases, I will not be able to assess the client’s damages until we consult an expert to provide me with an opinion as to the client's prognosis and needs.
What are damages?
Damages are about compensating the person who has been injured, not punishing the person or entity that caused the injury. This means the "amount" depends on how badly the client is injured.
Two people can have different outcomes from the same accident. If a healthy 20-year-old university student slips and falls on her way to class on a January morning, she will probably stand up, shake it off and continue her day. However, if an 80-year-old with osteoporosis slips and falls on an icy sidewalk, she could sustain serious fractures and other injuries.
Similarly, a young person who suffers a traumatic brain injury in a motor vehicle accident could lose their career. In contrast, a retired person who suffers a traumatic brain injury likely would not suffer any income loss at all.
Types of damages
There are three main categories of damages in Ontario:
1) Pecuniary damages for loss of income
In simple terms, pecuniary damages compensate a plaintiff for lost wages or employment income. For instance, a plaintiff who sustains a broken leg and misses four months of work would be entitled to the four months of salary she lost during her recovery period.
However, the analysis is rarely straightforward. Here are some factors we consider:
- Future income losses: A young person who sustains a serious brain injury may never be able to engage in full-time employment over the course of their life. In these cases, we need to think about their expected career path over their lifetime if the injury had not occurred.
- Disability benefits: Many employees have group plans that provide them with long-term disability benefits when they are unable to return to work due to injury. These usually pay only a portion of the plaintiff’s salary, in the range of 80 per cent. We will then need to consider the shortfall in income, as well as the possibility that the long-term disability insurer may terminate those benefits in the future.
- Post-accident career path: In most cases, the client can return to work, but not in the same capacity that they were able to work before the accident. This could take the form of working reduced hours or working a less demanding job but at a reduced salary. This means we need to think about the client’s career path post-accident and compare it to their potential career path if the accident had never occurred.
In most cases, we will need an opinion from an economist or an accountant who can provide us with a calculation as to the injured person’s post-accident income loss.
2) Pecuniary damages for past and future care costs
You are entitled to claim damages from a defendant for the cost of the medical expenses that you incurred as a result of your injury.
Many plaintiffs receive treatment from OHIP at no direct cost to themselves. But most serious injuries require rehabilitation beyond what OHIP can provide, such as physiotherapy, chiropractor care or psychological counselling. These costs can become expensive – for individuals suffering from brain injuries or quadriplegia, they might require 24-hour supervisory care.
An occupational therapist or a life care planner is usually needed to give us an opinion as to the care an individual will require over the rest of their life. We will also need an economist or an accountant to quantify the cost of that care in today’s dollars.
In most cases, we are not able to assess your cost of care until we have a chance to see how you recover from your injuries and hear from various experts.
3) Non-pecuniary “general damages”
General damages provide plaintiffs with compensation for intangible losses, including their pain, suffering and loss of enjoyment of life.
In some cases, a client may not have any income losses or costs of care, but will still have a claim for pain and suffering damages.
In the 1970s, the Supreme Court of Canada capped these damages at $100,000. In today’s dollars, the highest awards are approximately $300,000 to $382,000. The highest awards are reserved for the most catastrophic of cases where a plaintiff’s life is permanently impaired, such as quadriplegia or traumatic brain injuries.
Plaintiffs who make a good recovery from their injury will generally receive a lower amount in general damages. However, even in the case of a fracture injury, a plaintiff may go on to suffer from osteoarthritis or a psychological injury such as anxiety or depression. These factors serve to increase the amount of general damages likely to be awarded by the court.
Although sometimes lawyers can provide you a range of expected damages early in your case, there is only one chance to settle your case or try it at trial. It is therefore important we obtain the expert evidence we need to ensure you are claiming the damages you require over your lifetime.
Frances Shapiro Munn is a partner at Nelligan O’Brien Payne LLP, working exclusively in civil litigation with a focus on personal injury, insurance defence litigation and professional liability litigation.