After being injured in an accident, recovery and returning to your daily life may present you with challenges. You may consider filing a lawsuit against the person who injured you. One of the first things you will likely want to know is how much your claim may be worth.
We provided some information about how legal claims work and some general information about damages in this post. However, the subject of personal injury damages is extensive, and there can be a lot of legal jargon and unfamiliar terms. In this post, we’ll explain some of those terms and help you understand how your injuries may be categorized and discussed by your lawyer, the other side, or the court.
What are “Damages”?
The word “damages” in law essentially means money. When you claim damages, you are asking the at-fault party to compensate you for loss or harm they have caused with a sum of money. If you have been in an accident, you may have suffered several different types of losses or harm. Courts recognize this and use different categories and different methods of assessment for evaluating different types of damages. Since some of these categories overlap, understanding the terminology can be helpful.
Broad Categories of Damages: Compensatory and Non-compensatory
As a general rule, the main objective of damages is to try, as much as money can do, to put you back in the position you would have been in if the accident had not happened. These are called compensatory damages – damages that attempt to compensate for actual loss suffered, to the extent possible. This broad category includes damages for pain and suffering, loss of income, costs of medical care or other expenses you have had to pay out of pocket, etc. Most of what you will be seeking as an accident victim is compensatory damages.
Occasionally, courts may consider it appropriate to also award non-compensatory damages. These amounts are not related to an actual loss. Instead, they are awarded in exceptional cases where the courts feel that conduct by the defendant has been particularly offensive and warrants a financial consequence as a punishment or deterrence. These are known as punitive or exemplary damages, and although possible, are less common in accident cases. In addition, if a plaintiff’s rights have been violated, but no damages have been shown such that no compensatory damages can be ordered, a court may choose to award nominal damages. These are usually modest in amount and intended to provide recognition that a right was violated.
Types of Compensatory Damages: Pecuniary and Non-Pecuniary
Within the category of compensatory damages, losses may be described as either pecuniary or non-pecuniary. Pecuniary losses are normally amounts that can be calculated or quantified fairly precisely by the court based on information that you provide. For example, past or future loss of income, costs of medical care, or other tangible expenses you have incurred or are likely to incur in the future are pecuniary damages.
Non-pecuniary damages, by contrast, are typically more difficult to quantify in terms of actual dollars. Losses and injuries that fall into this category include things like physical pain and suffering, psychological distress, loss of enjoyment of life and esthetic prejudice. In evaluating these types of damages, courts recognize that no amount of money can compensate for some types of loss.
Special versus General Damages
When a claim is filed in court, the damages claimed are typically categorized into two classes: special damages and general damages.
Special damages cover pecuniary losses you have suffered up to the date of trial. Because they are pecuniary, they have a dollar value attached to them – in general, anything you can produce a receipt for can be classified as a special damage. They may include things like ambulance bills, acupuncture or massage therapy appointment costs, and the cost of prescription or over-the-counter pain medications.
The amount of special damages that can be claimed will stop at the time of trial. After that, all of your damages will be classified as general damages. This is because everything that happens after the trial will occur in the future and is impossible to predict with any certainty. For example, the cost of all your pain medication before trial is a special damage; you have receipts for this, and it is easy to quantify by adding up these receipts.
However, it is impossible to say how much medication you will need in the future, and how much that medication might cost. The cost of the medication is therefore classified as a general damage under the heading of future costs of care, along with other costs that may be incurred to care for you in the future as a result of your injuries. If your injuries are severe, experts will likely be required to provide detailed calculations of what costs may be involved in caring for you.
Similarly, any salary or income lost because of your injuries before trial is part of special damages. Future loss of income that might be anticipated to occur after trial, however, is part of general damages, since the court will be required to extrapolate from presently known information to try to predict how your injuries might affect your employability, your career trajectory, and your ability to earn income in the future. Again, experts may be used to assist the court in making these assessments.
In addition to these future pecuniary damages, general damages also include your non-pecuniary losses – for things like pain and suffering, psychological distress, reduced life expectancy or loss of enjoyment of life. Because these are intangible, they can be challenging to pin down with precise accuracy, and they are often based on trying to predict what might happen in the future. To decide what amount of non-pecuniary compensation is appropriate for you, your lawyer and the court will look at what amounts have been awarded in past cases to plaintiffs who have suffered similar injuries.
It is important to note that to the courts, psychological damages are every bit as real as physical damages. A party who is suffering from depression, anxiety, post-traumatic stress disorder, nightmares, or poor sleep may recover compensation for these mental injuries – they will be included in the assessment of your non-pecuniary damages. Psychological and emotional distress is not uncommon after an accident and can be debilitating. For suggestions on coping with these symptoms, please consider the helpful tips found in this post.
What to look for in an injury lawyer
As you will have gathered by now, calculating damages depends on your specific facts and circumstances and predicting amounts can get complicated fast. That’s why it’s crucial to have a lawyer well-versed in personal injury law and who understands what different types of damages may come into play, especially if you are dealing with permanent or life-changing injuries. That experience is also invaluable in identifying and helping you arrange for the resources you need to make as complete a recovery as possible and for your future care. Likewise, experience dealing with a broad range of injuries and clients in different situations will benefit you because an experienced injury lawyer is in a better position to anticipate what may be necessary to prove your case and properly assess the full amount of compensation you may be owed.
At CAM LLP our lawyers have focused exclusively on helping injured Albertans pursue fair compensation for their injuries since 1962. During that time, we’ve built up considerable expertise assessing the full impact of different types of injuries. That includes being able to efficiently identify and calculate the full range of damages that may arise in any given situation. Years of practice focused in the area of injury law also means we are experienced negotiators and we know how to effectively present a client’s case to both insurers and the courts.
If you have been injured and have questions about what possible damages you may be able to claim, or you need representation, CONTACT us for a free consultation.