In Alberta, if you have suffered a physical, emotional or psychological injury as a result of a car accident, medical malpractice, slip and fall, or any other type of personal injury claim, you may be entitled to damages. Monetary compensation, referred to as damages in the legal context, are awarded to the injured party (plaintiff) by the party who is legally responsible for the accident (defendant).
In the case of motor vehicle accidents, a tort claim (claim that deals with an injury to a person or their property for which the person may claim financial compensation) can be commenced for pain and suffering sustained in the accident and any out of pocket expenses that are not covered under accident benefits (statutory accident benefits claimed through your auto insurer). This type of lawsuit is commenced against the insurer of the at-fault driver of the motor vehicle accident.
Compensatory damages are awarded in an attempt to restore the injured party to the position that he/she would have been in had the injury not taken place. Such damages are remedial, rather than punitive.
There are two categories of compensatory damages, general and special damages.
General damages are awarded by the court for the non-monetary losses suffered by the injured party that directly flow from the wrongful conduct of the defendant. Damages of this nature include physical pain and suffering, inconvenience, loss of enjoyment of life, loss of companionship, physical disfigurement, mental anguish, physical impairment, and lowered quality of life. These damages are often difficult to quantity as they are personal and subjective to the plaintiff.
The court will consider several factors to help determine the appropriate amount of general damages to be awarded, including:
- Plaintiff’s age;
- Plaintiff’s general health prior to the incident;
- Nature of the injury;
- Severity and duration of the pain;
- Level of disability;
- Impairment of physical and mental abilities;
- Emotional suffering; and
- Loss of lifestyle or impairment of life.
The court will also look to previous case law with similar facts and injuries to assist in the assessment of damages. However, the amount of general damages awarded can vary on a case by case basis.
In 1978, the Supreme Court of Canada, in its ruling in the case of Andrews v. Grand & Toy Ltd., set a limit on the maximum amount of general damages that may be awarded at $100,000 (approximately $375,000 adjusted for inflation) for the most severe injuries in a civil action.
The Supreme Court of Canada specifically stated that the amount of general damage awards should not vary greatly throughout Canada. The Court stated:
Everyone in Canada, wherever he may reside, is entitled to a more or less equal measure of compensation for similar non-pecuniary loss.
Special damages are those damages that can be easily calculated and quantified. This category of damages are designed to reimburse the injured party for out of pocket expenses incurred due to the defendant’s improper actions. These expenses can include medical and rehabilitation expenses, lost wages, lost income during recovery, loss of future income and earning capacity, and housekeeping and home maintenance expenses.
Special damages must be proven with specificity. Plaintiffs are reminded to keep all receipts and paperwork to prove the amount of the special damages they have incurred as a result of the accident.
Future care costs can be defined as the amount required to pay for medical and professional support and equipment that will restore the injured person to the position they were in before the accident occurred. Future care costs are a projection of actual expenses.
In the case of a calculation of future costs, the use of expert opinion from medical professionals will help with this financial valuation. This assessment may include items such as the following:
- Pharmaceutical products;
- Assistive devices and household items that aid in the care of the plaintiff;
- Housekeeping and personal care services;
- Vocational counselling or retraining; and
- Treatments prescribed by health care professionals.
DUTY TO MITIGATE
In assessing the range of damages in a personal injury case, the courts will also consider mitigation. Mitigation is defined as a legal principle requiring the plaintiff to take all reasonable efforts to minimize the impact of the loss, physical, psychological, emotional or financial. This is known as the duty to mitigate.
A plaintiff is required to seek and obtain all available treatment to help recover from the injuries. Damages may be reduced by the court if the plaintiff has failed to take all reasonable steps to recover from his/her injuries. Thus, damages may be reduced for a failure to mitigate. The onus is on the defendant to prove that the injured plaintiff failed to mitigate.
For example, in the case of Stevenson v. Thompson, the Court found that the plaintiff failed to mitigate her damages as she failed to follow the advice of her caregivers to continue with her physiotherapy treatments. The Court reduced her general damages award by 20%. Therefore, she was awarded $60,000 instead of $75,000.
At Cuming & Gillespie Lawyers, we represent individuals who suffer from all types of serious personal injuries. If you or a loved one have sustained an injury and would like more information about your legal options, we can help. For a free initial consultation with one of Calgary’s award winning personal injury lawyers, please contact our office online or at 403-571-0555 today.