For many people injured in an accident, pursuing compensation for their injuries is a necessary part of their road to recovery. The first question we often get asked when meeting with an injured person is, “How much is my claim worth?” Unfortunately, the answer is often “It depends.” We know that can be frustrating to hear, but there are many factors that go into evaluating the value of a claim, and every case is different. Below are just some of the factors that may affect how much you might receive from a court in damages if you sue the person or persons responsible for your injuries.
How Do I Receive Compensation for My Injuries?
The purpose of damage awards in Canadian law is to compensate an injured person, known as the plaintiff. A plaintiff is not supposed to profit from their injury. Rather, the goal of a damage award is indemnification: to put the injured party back into the position that they were in before being injured by the defendant’s conduct. Of course, this can be very difficult to do. First, no amount of money can truly compensate you for a permanent disability or the loss of your health. Second, no one can see into the future and account for every possible financial or rehabilitation need that may arise because of your injury. However, the courts try, in so far as possible, to award sufficient funds to provide indemnification.
To receive a damages award, you must prove that the defendant was liable – that is, the defendant’s conduct was wrongful and that the conduct actually caused your injury. For example, if you were parked legally and the defendant hit your car and you were injured, they will almost certainly be found 100% liable for your injuries. Being liable means legally responsible. If the court finds that a defendant was fully liable for your injury, then the defendant will have to pay one hundred percent of your damage award.
Examples of Contributory Negligence
If the court finds that something you did or did not do contributed to the accident or the severity of your injuries, it may find that you are partly responsible for your own injuries: in law, this is called contributory negligence. Examples might include the following scenarios:
- You suddenly changed lanes without signalling, and a driver rear-ends you.
- You were driving while impaired or you were not wearing a seatbelt at the time of the accident
- You are a cyclist, and you were riding at night without lights or reflective clothing at the time of the accident, or
- Perhaps you are a pedestrian and got hit by a motor vehicle while jaywalking.
In these cases, a court might find that you are partly at fault for the accident or the severity of your injuries. If a court finds you are contributorily negligent, this does NOT necessarily mean you are not entitled to any damages. If the court finds that you were in some way responsible for your own injuries, the court will most likely apportion (divide) liability between you and the defendant. For example, if you are awarded $100,000 in damages, but the court finds you were 25% at fault for your own injuries, the court will reduce the damage award the defendant has to pay to you by 25%, down to $75,000.
Factors in Calculating the Value of a Lawsuit
One factor in calculating the value of a lawsuit is how serious your injuries are. Obviously, plaintiffs who suffer more severe damage and loss will receive higher settlements than those who have sustained less serious injuries – for example, someone with a broken back will be awarded more money than someone with a broken finger. It is important to note that your injuries are not limited to physical injuries: psychological and mental injuries, such as depression, post-traumatic stress, anxiety, sleep disturbance, and personality changes are all losses that a court may consider in determining your damage award.
Another important factor to be aware of concerning your injuries is maximum medical improvement (MMI). MMI is the term used by your doctors to describe when you have recovered as much as you ever will from your injuries. Before you reach MMI, it may be difficult to assess what heads of damages you can claim for, and the amount you can claim under each head of damage, as your medical situation may still improve. Once MMI is achieved, your treatment providers will be better able to assess what your condition will look like in the future.
What Can I Claim?
There are many things that it is possible to claim for in a personal injury lawsuit; these are called heads of damage. Not every plaintiff will be able to claim under every single one of these heads of damage, but the list below provides an overview of some of the more commonly available types of claims:
Pain and Suffering
Also known as non-pecuniary or general damages, are intended to compensate you for all of the pain and suffering that your injuries have caused you. General damages are to compensate for the pain you have suffered in the past, the present, and for any pain and suffering you will endure in the future. In Canada, there is a cap on the amount of general damages that a plaintiff can receive; the current value of this cap is approximately $370,000. In Alberta, there is also a cap for soft tissue injury compensation pain and suffering claims of $5,098.
Special damages are awarded to compensate you for monetary losses that are quantifiable. Special damages are totaled up and accounted for by the time of a trial; they are tangible and certain. Anything that might qualify as special damages after the trial will occur in the future and are accounted for under a different head of damages. Some examples of special damages include physiotherapy and massage therapy bills, crutches or braces, and the cost of prescriptions.
Future Cost of Care
In many cases, a person who has been seriously injured in an accident will suffer the effects of their injuries into the future. They may need ongoing care in the form of further surgeries, treatments, and prescriptions; they may also require help with housework and yard work responsibilities. This head of damages is intended to compensate a plaintiff for all of their future needs. Of course, it is impossible to see into the future to determine exactly how much money you will need for your future care. However, experts in this field will be consulted to give an idea of how much money can be claimed under this head of damage.
Income loss damages are just what they sound like. Compensation for the income (including commissions) you would have earned had you not been injured. You will need to provide proof of your earnings and any commission agreements that apply to your employment. This information is usually obtained with the cooperation of your employer. If you are self-employed (e.g., a professional like a doctor, lawyer, dentist, consultant, etc) or a business owner we may need to retain the help of an accountant to figure out your losses.
Future Loss of Income
It is sometimes the case that an injured plaintiff is unable to return to work in the job they had previously done because of their injuries. It is unfair to the injured person that they should make less money because of a defendant’s wrongful conduct. Under the “Future Loss of Income” head of damages, a plaintiff will be compensated for the amount of money they will lose in the future due to their injuries. Again, experts will need to be brought in to make an accurate claim under this head of damages.
All of these factors, and more, need to be assessed in making an accurate valuation of your personal injury claim. If you have been injured and would like to discuss what the potential value of your claim might be, CONTACT us for a free consultation.