If you have been injured in an accident, you may decide to file a claim and seek compensation for your losses from the at-fault party. We have discussed the kinds of damages that you may be able to make a claim for in this post. They include damages for financial losses, like lost income if your injuries prevent you from working, as well as general damages for things like pain and suffering or esthetic prejudice (e.g., disfiguring injuries that may require plastic surgery or dental surgery).

However, it is not a given that you will get everything that you ask for. Even if you are able to prove the injury and losses you have suffered, you should be aware that there are factors that may limit your financial recovery. Being aware of these limitations may help you and your lawyer to assess what your claim is worth.

General Damages Upper Limit

In Canada, there is an upper limit on the amount of general damages that a person can receive for pain and suffering. The limit was set  in 1978 by the Supreme Court of Canada, out of concern that general damage awards could become inflated and out of proportion, as appeared to be happening in the United States (where even today there is still no limit on damage claims). The Supreme Court wanted to ensure that financial recovery for a person’s pain and suffering was limited to an amount that could be considered “reasonable”.

At that time, the Supreme Court determined that a “reasonable” ceiling on damages for pain and suffering was $100,000. Since then, courts have adjusted the amount to reflect the impact of inflation. Currently, the general damages ceiling in Canada is approximately $415,000.

The  upper limit is reserved for the most severe cases involving injuries such as quadriplegia, serious traumatic brain injuries, and other catastrophic injuries. Injuries that are less severe will attract a proportionately lower damage award reflective of the relative degree of the plaintiff’s injuries and suffering in comparison to the most severe cases.

Note that the upper limit only applies to damages for pain and suffering. Compensation that you may be entitled to for other aspects of your loss, such as costs of care or lost income, are not affected.

Remoteness

Personal injury law is governed by the principles of tort law. A tort is a wrongful act or injury that leads to physical, emotional, or financial damage to a person. The principles of tort law provide compensation for people who have been injured.  Under tort law, it is normally presumed that a person intends the natural consequences of their actions. Someone who is negligent should therefore be liable for any direct and immediate consequences caused by their negligence. However, the scope of a person’s liability is not limitless. If a person’s act or omission causes harm that could not reasonably have been foreseen or anticipated, the resulting loss is said to be too remote, and will not be compensable.

The legal principle of remoteness requires the court to consider whether a defendant’s wrongful conduct was the proximate cause of the injuries you suffered. If it was not, then it may not be fair to hold him/her responsible for your losses.

Remoteness can also apply to financial losses. For example, some cases have held that a plaintiff who has to borrow money to cover personal expenses while injured or to fund litigation related to the injuries is not entitled to compensation for interest payable on the loans. Similarly, a plaintiff who decides to sell property as a result of financial difficulties following an accident may not be able to claim compensation if they sell the property at a lower price, as these losses are considered too remote and unforeseeable to be fairly imposed on the defendant.

Remoteness may also apply where a plaintiff claims to have suffered psychological harm. The Supreme Court of Canada has indicated that while depression, anxiety, and other mental health conditions are compensable forms of injury, the test for recovery is whether it was reasonably foreseeable that a “person of ordinary fortitude” would suffer the type of psychological injuries claimed. Extreme, debilitating conditions that develop following relatively innocuous events may not be foreseeable, and thus too remote to be compensable.[1]

With respect to physical injuries, however, there is no “reasonable fortitude” test. A plaintiff simply needs to show that the type, class, or character of injury sustained was a reasonably foreseeable consequence of the defendant’s negligence. Once that is shown, the defendant is liable for the full extent of the plaintiff’s injuries, and they will not be too remote even if they turn out to be more severe than might have been expected.

Causation

Another potential issue preventing complete recovery of damages is the legal principle of causation. When considering causation, the court will ask whether your losses were actually caused by the other party’s wrongful conduct. The legal test used to determine causation is known as the “but for” test: but for the other party’s improper actions, would you have suffered damages?

Causation can become tricky for the courts to analyze if you had any pre-existing medical problems or conditions. The court will need to determine whether any current medical complaints that you have were in fact caused by the accident, or whether, instead, they result from your pre-existing medical conditions.

For example, if you had a history of going to the chiropractor for neck pain before the accident, the other party may try to claim that neck pain you are experiencing post-accident was not their fault, but rather the fault of your pre-existing condition. They will argue that you have not proven causation.

However, the presence of a pre-existing condition does not mean that you can’t claim damages. Rather, the basic principle is that the plaintiff must be put back in the position they would have been in absent the defendant’s negligence (wrongful conduct). Plaintiffs need not be placed in a position better than their original one. If you have a condition and it is made worse by the defendant’s conduct, the defendant will be liable for the aggravation. Therefore, to assess the loss, it is necessary to determine the plaintiff’s position before the accident, and after. For more information on pre-existing conditions and causation see our blog post:  How do Pre–existing Injuries Potentially Affect Your Personal Injury Damage Award? You are also welcome to contact us to talk to you about your specific situation.

Contributory Negligence

Your damage award may also be limited if the court finds that you have somehow contributed to your own misfortune. This is known as contributory negligence.

An example of contributory negligence might be that you were not wearing your seatbelt at the time of a car accident, or that your own driving was partially to blame for the accident. If the court determines that you were partially responsible for your own injuries, you can still be awarded damages, but the amount may be less than you would have received if you were completely faultless.

The court will apportion responsibility for your damages on a percentage basis, reflecting the extent to which the court believes each party was at fault. For example, if the court decides your damages are worth $100,000 but you are 50 percent responsible for the accident due to your contributory negligence, your damages would be reduced by 50 percent, and your total recovery would be $50,000.

Mitigation

Finally, your damage award may be reduced based on what you did or didn’t do after you were injured. The courts expect an injured party to mitigate their damages; that is, they must take reasonable steps to try to improve their own situation.

In personal injury cases, this means that the injured party must follow the advice of their medical professionals, complete rehabilitation programs, take medication, and undergo reasonable procedures likely to foster recovery. If an accident victim is unwilling to take steps to mitigate their losses, the court may be disinclined to award the full amount of damages.

However, mitigation does not require a plaintiff to take extraordinary measures, or exhaust absolutely every option that might potentially provide some benefit. The requirement is simply that the plaintiff take reasonable steps to support their own recovery. For more information on mitigation and what that might mean in terms of returning to work you may find it helpful to review our post: Mitigation and Returning to Work After an Injury: What you Need to Know.

How CAM LLP can Help

CAM LLP has a team of accomplished and experienced personal injury lawyers. If you have questions about how you can maximize your financial recovery of damages, please CONTACT us for a free consultation.

[1] As was the case, for example, in Mustapha v Culligan of Canada Ltd, 2008 SCC 27, [2008] 2 SCR 114.