What Are General Damages In Personal Injury Claims?

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What Are General Damages In Personal Injury Claims?

If you visit our page, “How Much is My Claim Worth?” you will find the cases quote an amount for “general damages”. General damages are the amount the court awards for pain and suffering, inconvenience, loss of amenities of life, and loss of enjoyment of life to the innocent victim of wrongdoing. They are called general damages because they are intended to provide solace to a victim for the injuries he or she has suffered over and above the amounts the court awards for treatment costs, and loss of wages – past and future.

In Stapley, Madam Justice Kirkpatrick summarized many of the factors to be considered in assessing a claim for general damages at para. 46:

The inexhaustive list of common factors cited in [Boyd v. Harris (2004), 237 D.L.R. (4th) 193 at para. 5, 2004 BCCA 146 (CanLII)] that influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

As well other courts have the following factors, although they may arguably be subsumed in the above list:

(g) impairment of family, marital and social relationships;

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton[2005] B.C.J. No. 1632005 BCCA 54 (CanLII)).

As the Supreme Court of Canada has said, money can never replace lost health, however the courts have no other option but to award a dollar amount.  Unfortunately, this dollar amount in Canada, unlike the U.S., is extremely low because of a cap the Supreme Court of Canada put on general damages for pain and suffering in the seminal case from 1978 called Andrews vs. Grand & Toy Ltd., where the court said there should be an upper limit for general damages for pain and suffering for the most horrific injury. In 1978 the court said that upper amount for the most horrific injury, being a quadriplegic, which is the loss of all 4 limbs, would be $100,000.00, updated to October 2017, this amount is $383,017.00.

In our opinion, this amount for a quadriplegic that cannot move any limbs and has lost all enjoyment of life is an inappropriately low amount and the Supreme Court of Canada needs to revisit this cap and award a much larger sum for general damages for pain and suffering for catastrophic injuries.

By awarding a larger sum for the most serious injuries, the Supreme Court of Canada would then allow other less catastrophic injuries to also have an increased amount for general damages for pain and suffering.
This is necessary because the Supreme Court of Canada said in 1978 when placing the cap at $100,000.00, that it assumes that the victim will receive full compensation for other heads of damages.  Unfortunately, this is not the case currently in Alberta as the Alberta Court of Queen’s Bench in Calgary and Edmonton routinely make deductions for unpredictable contingencies which often leave the victim short of money for treatment costs and short of the amount of money they would have earned had the accident never occurred. Thus, the victim is dipping into the general damages amount to compensate for this shortfall in other heads of damages.

This is tragic given that the general damage amount is already low and then the victim must dip into that amount awarded for general damages to pay for treatment costs leaving a very small amount for general damages for pain and suffering, inconvenience, loss of amenities of life and loss of enjoyment of life.

Brent L. Handel, Q.C.

By | 2017-10-23T15:01:35+00:00 October 19th, 2017|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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