In Alberta, if you have suffered a physical, emotional or psychological injury as a result of a car accident, medical error, a slip and fall, or any other type of accident that was caused by a third party, 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 legal claim 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.
General damages are awarded by the court for any non-monetary losses suffered by the injured party that directly flow from the wrongful conduct of the defendant or at-fault party. 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.
Reliance on Case Law
In order to determine how much compensation to award in any particular personal injury claim, the court will also look to previous case law with similar facts and injuries to assist in the assessment of damages. The law of general damages should be applied consistently throughout the courts in Canada. Therefore, judges are required to follow rulings made by other judges in higher courts in their own province and the Supreme Court of Canada. They may also review cases from other provincial courts or jurisdictions, however, these cases are not necessarily binding.
According to the Supreme Court of Canada in the case of Andrews v. Grand & Toy Alberta Ltd.:
Everyone in Canada, wherever he may reside, is entitled to a more or less equal measure of compensation for a similar non-pecuniary loss. Variation should be made for what a particular individual has lost in the way of amenities and enjoyment of life, and for what will function to make up for this loss, but variation should not be made merely for the province in which he happens to live.
Upper Limit Cap
In a trilogy of cases before the Supreme Court of Canada in 1978, a maximum amount of general damages was determined to limit the amount an individual can receive in a civil action in Canada. The highest court in Canada determined that an upper limit of $100,000 would apply for general damages in Canadian courts.
Generally, the upper limit cap is the rule in Canada, however, this cap will not apply in “exceptional circumstances”, which is very rare.
Over the years, the upper limit cap has increased due to inflation to reflect the “changing economic conditions”. In 2021, the upper limit cap is approximately $390,000 for those individuals that suffer the most serious injuries, such as severe brain injury or spinal cord injuries.
FAMILY PLANNING CONSIDERATION IN AWARDING GENERAL DAMAGES
One of the factors that can be considered by the court in awarding general damages is the impact that serious injuries can have on an injured claimant’s ability to have children. A claimant who is suffering from significant injuries must consider whether to have and care for multiple children or any children at all given the pain that he/she is suffering from as a result of an accident. This decision is a life changing one that can affect the individual’s enjoyment of life.
In a recent decision in British Columbia in the case of Kringhaug v. Men, the plaintiff was struck by a vehicle when she went onto the street to move her 2-year old nephew from the road after noticing the defendant’s vehicle enter the street. The plaintiff suffered from chronic soft tissue injuries and mild post traumatic stress disorder as a result of the accident. At the trial, the experts concluded that despite her efforts to return to her usual work and routines, her injuries were considered permanent and unlikely to resolve regardless of any further treatment.
The plaintiff testified that before the accident it was her intention to have a large family of 4 children. She did become pregnant with her third child after the accident, but due to chronic pain from her injuries she found the pregnancy to be more physically challenging. She further testified that due to her injuries it was unlikely that she would have any more children as she had initially hoped.
In taking into consideration that the plaintiff’s family planning would be changed due to her injuries, the trial judge stated:
Where a plaintiff alters or abandons parenting plans due to injuries sustained in an accident, the court has recognized this as an aspect of the plaintiff’s loss that is appropriately considered in awarding non-pecuniary damages.
In my view, the most important factors affecting the award of non-pecuniary damages are Ms. Kringhaug’s relatively young age at the time of the accident, the impact of the injuries on her family-planning decisions, the uncharacteristic onset of work performance issues, and the particularly distressing circumstances of the accident including being hit while supervising a young child.
The trial judge awarded the plaintiff $100,000 for loss of enjoyment of life given all of the above noted circumstances.
At Cuming & Gillespie LLP, we are committed to helping you and your loved ones. If you or a loved one have been injured in a motor vehicle accident and believe a third party is responsible, you may be entitled to compensation for damages. Please contact the award winning lawyers at Cuming & Gillespie LLP either online or at 403-571-0555. We can get started with a free case evaluation and are dedicated to providing you with the legal help that you deserve.