Pain, Suffering and Loss of Enjoyment of Life

(Non-Pecuniary or General Damages)

Non-pecuniary or general damages are meant to compensate and injured person for the loss of ability to fully enjoy life to the same measure as before he or she was injured. Generally, factors that are considered are the type and severity of the injuries, the extent of pain a person has endured and/or will continue to endure as a result of the injuries, and the impact of the injuries on the person’s employment, recreational and day-to-day activities, psychological well-being and personal relationships. Non-pecuniary damages are so called because the appropriate amount of money for any particular person cannot be calculated by any precise or mathematical means. Instead, courts have established a range of damages that vary with the type of injuries and the way in which the injuries have affected the particular claimant’s life. In 1979 the Supreme Court of Canada established an arbitrary limit of $100,000 that could be awarded for the most serious and devastating of injuries. The limit, or cap for non-pecuniary damages increases each year with inflation, and currently is about $325,000.

Loss of Income

An injured person is entitled to be compensated for the loss of any income that would have been earned up until the date of settlement or trial, as well as any income realistically expected to be lost in the future as a result of the injuries suffered. In some cases, a person is entitled to compensation for loss of income even if he or she was not working or employed at the time of injury. Compensation for loss of income may include the value of any lost benefits. In some cases, a person may have lost the opportunity for a promotion or change to a higher paying job. If proven, such a “loss of opportunity” is also recoverable.

Past Loss of Income

A person injured by the fault of another person is entitled to recover any wages or salary lost if he or she cannot work due to the injuries suffered. Past loss of income is calculated from the date of loss until the conclusion of the claim by settlement or trial. If the person was injured in a motor vehicle accident, her or she is entitled to net loss of income (after tax income), and the amount is further reduced by any disability benefits paid by ICBC under Part 7 (“no-fault benefits”).

Future Loss of Income or Loss of Earning Capacity

If a person can prove that his or her injuries are likely to result in loss of income past the settlement or trial date, he or she is entitled to compensation for loss of future income. Sometimes a person will be totally disabled for the remainder of his or her working life, and sometimes he or she might be only partially disabled, or disabled from only some types of work but capable of others. Courts generally view a person’s ability to work as a “capital asset,” the value of which varies depending on a person’s age, work history, education and other factors.

In some cases, a person’s future income loss can be calculated fairly easily with reference to the wage or salary earned at the time of injury, and sometimes the loss cannot be so easily calculated. If there is a “real and substantial possibility” that an injured person will lose income in the future, he or she is entitled to be compensated for that loss, even if a return to a full or part time occupation has been achieved. This type of income loss is referred to a “loss of earning capacity” and requires assessment of the value by which a person’s “capital asset” has been impaired. The means of measure is more arbitrary than mathematical and is considered on a case by case basis. Some of the factors a court will consider when assessing a loss of earning capacity are whether the injured person:

• Is rendered less capable overall from earning income from all types of employment;
• Is less marketable or attractive as an employee to potential employers;
• Has lost the ability to take advantage of all job opportunities which might have been open to him or her had the injury not occurred;
• Is less valuable to him or herself as a person capable of earning income in a competitive labour market.

It is important when preparing a case for settlement or trial to have an accurate medical prognosis which can be the basis of assessment for future income loss. In more complex cases, your MacIsaac & Company lawyer also has access to expert economists, vocational and work capacity evaluators who can assist in developing and supporting your claim for loss of income.

Costs of Future Care

A person injured through the fault of another person is entitled to receive money to fund items and assistance necessary to improve or maintain the injured person’s physical and mental health. Future care costs may include such things as rehabilitation support services, physiotherapy, chiropractic treatment, massage therapy, equipment and home alterations reasonably necessary to facilitate independence and mobility, medications, housekeeping services, yard maintenance and handyman services, psychological counselling, occupational therapy, nursing or in-home care services, child care, and educational or vocational support services.

Before you settle your claim, it is very important to have a long-term medical prognosis addressing the expected duration of accident related injuries and associated limitations, as well as recommendations from a qualified professional for future care needs over the long term. Where necessary, MacIsaac & Company can retain experts to provide recommendations for future care needs, and in more complex cases, the costs of the recommended items over the long term, or for life, if necessary.

Loss of Housekeeping Capacity

If a person injured through the fault of another person is less able to perform their usual tasks in and around their home, they are entitled to compensation for their reduced capacity to perform those chores. Sometimes courts will recognize this loss by awarding a higher amount for non-pecuniary damages, and sometimes it will be included with costs of future care or special damages. However, loss of housekeeping capacity is sometimes considered a separate head of loss, and a specific amount will be awarded to compensate the injured person for their loss of ability to perform household tasks, even in cases where the person has not actually spent money to hire someone else to do those tasks.

“In Trust” Claims for Assistance Provided by Family Members

When a family member such as a spouse or parent provides services to an injured relative, they may be entitled to compensation, even if the injured person did not pay for the services. The claim is made as part of the injured person’s claim for compensation “in trust” for the person who provided the services. Typically, the services will involve homemaking or nursing services above and beyond what would reasonably be expected from the family member who provided them. Generally, it must be demonstrated that the person who provided these “extraordinary services” experienced an economic loss (such as income loss) because of the time and effort spent providing the services, or that the person provided services for which the injured person would otherwise have incurred an expense, such as the hiring of a housekeeper, nurse or care attendant.

If you are injured and have benefited from the extraordinary services of family members, it is important to keep track of the time they spend in providing the services in order to support your claim for compensation on their behalf.

Special Damages

Special damages are expenses reasonably incurred through the fault of another person. If you’ve been injured in an accident for which someone else is at fault, you have probably incurred out-of-pocket expenses for things such as:

• Repair or replacement of damaged property or clothing;
• Ambulance fees;
• Medical treatment;
• Fees and/or user fees for therapies such as massage, chiropractic treatment, physiotherapy or acupuncture;
• Prescription or over-the-counter medications;
• Dental expenses;
• Car rental;
• Vehicle repair;
• Insurance deductibles;
• Travel expenses or mileage to medical appointments and therapies;
• Housekeeping services;
• Medical equipment or adaptive aids;
• Expenses or lost income incurred by family members caring for an injured person.

If the insurance company or your own extended benefits coverage does not cover these types of expenses, they are recoverable at the conclusion of your claim if they were reasonably incurred in relation to your accident and injuries. It is a good idea to work closely with your doctor and other health providers to determine appropriate means of treatment and rehabilitation. Usually, if you’ve incurred the expense following a physician’s advice, you will be able to recover the expense. It is also a good idea to carefully retain any receipts or invoices for out-of-pocket expenses.