General Damages for Pain and Suffering – How is it Determined?

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General Damages for Pain and Suffering – How is it Determined?

Canada is very different from the United States when it comes to awarding general damages for pain and suffering. As the name applies, general damages for pain and suffering is a general award intended to compensate an innocent victim for the pain and suffering, inconvenience, loss of amenities of life, and loss of enjoyment of life. Obviously it is difficult to put a dollar value on such important matters as quality of life and therefore the name is called general damages to reflect the fact that this is an award for several aspects of the injury, but excluding the amounts needed for treatment costs or replacement of wages or replacement of future wages.

Determining Damages For Pain And Suffering

Why is the United States so much higher in awards for general damages for pain and suffering than Canada? The answer relates back to a Supreme Court of Canada decision called The Trilogy in 1978 of Andrews vs. Grand & Toy Alberta Ltd., Teno vs. Arnold and Thornton vs. Prince George School District #57 in this decision the Supreme Court Justice, Mr. Justice Dickson, concluded that the time had come to stabilize and bring some consistency to awards for general damages he said this view was necessary for the following reasons:

1. The claim of severely injured people for damages is virtually limitless. The fact that there existed in 1978 no objective yardstick for measuring such loss, left the area open to inconsistent and widely extravagant awards.

2. Damages for pain and suffering are not really “compensatory” as no money can provide true restitution. Accordingly, general damages should be viewed as providing additional money to make life more endurable.

3. The Supreme Court assumed that compensation for future loss of income and future care costs would be fully provided for. This assumption has proven to be incorrect given the deductions that are routinely made by Alberta Court of Queen’s Benches for such unpredictable factors as the sustainability of current public health care treatment costs being paid at the time of trial which may not be paid into the future.

4. The fourth factor was that the Supreme Court was concerned about huge awards for general damages which can lead to an excessive social burden. Excessive social burden is a phrase used to protect insurance company profits and the court was concerned about insurance companies having to charge high premiums to members of the public.

In summary, the Supreme Court of Canada in order to bring stability established a “rough upper limit on awards for general damages” and did so with the following statement: “I would adopt as the appropriate award in the case of a young adult quadriplegic like Andrews the amount of $100,000.00. Save in exceptional circumstances, this should be regarded as an upper limit of non-pecuniary loss in cases of this nature.”

Of course this $100,000.00 can be updated for inflation so that for July, 2015 the upper limit for a quadriplegic for general damages for pain and suffering would be $362,393.00 Think about that for a moment; it is appalling that in order to save insurance company profits a quadriplegic only receives $362,393.00 as a maximum amount for the extreme pain and suffering of being completely paralyzed of all four limbs from the neck down. Sure one can argue the United States has gone to the other extreme with huge multi-million dollar awards which costs insurance companies and thus customers higher premiums, but on the other hand $362,393.00 for pain and suffering for a quadriplegic victim in Edmonton or Calgary is nothing short of appalling.

Of course a quadriplegic will receive large amounts for costs of future care in excess of two million dollars depending upon the age at the time of the injury and the claim for the loss of income of the victim at the time of the injury will result in another one to two million dollars in loss of future wages. But these are expenses that the victim would not have for treatment costs but for the accident, and the victim would have earned his or her wages but for the accident. So the only award the victim is getting over and above for being a quadriplegic is the ridiculously low sum of $362,393.00. This amount needs to be revisited by the Supreme Court of Canada and updated to at least one million dollars.

By | 2017-07-14T18:17:03+00:00 May 6th, 2014|Personal Injury Claims and Damages|0 Comments

About the Author:

Mr. Brent Handel, J.D., Q.C. is the head of the Personal Injury and Fatal Accident Group at Handel Law Firm.

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