Once the initial shock of suffering an accident has passed and you have made the decision to go ahead with legal action to recover financial damages for your injuries, it is natural to wonder how much money you could be awarded. This can be a difficult question to answer, as there are many factors that go into determining the value of an injury claim.
There are many different types of losses that can be claimed following an accident. In previous blog posts, we have discussed some of the factors that may affect the value of your claim, and the broad categories of damages that usually apply. In this post, we will focus on one important category known as “non-pecuniary damages”.
What are non-pecuniary damages?
Non-pecuniary damages cover losses that cannot be precisely calculated. Sometimes also referred to as “general damages”, this category attempts to capture the kinds of losses that aren’t yet known and have to be estimated, and losses that are intangible and cannot be proven through receipts or invoices. Below is a further discussion of various types of losses categorized as non-pecuniary damages.
Future income loss
Something that might happen in the future falls in the category of non-pecuniary damages. For example, if you are injured and are unable to continue working at the job you held before the accident, you can claim compensation for income that you would have been able to earn at that job if you had not suffered injuries. Determining the amount of your future income loss is based on speculating what might have happened in the future. Would you have been promoted or changed jobs? How much would your salary have increased over time? At what age would you have retired? Since it is impossible to predict these things with certainty, these kinds of losses are considered non-pecuniary.
Loss of opportunity
Another type of non-pecuniary loss that you may receive compensation for is opportunities that you possibly missed out on as consequence of being injured. Loss of opportunity damages can be awarded if a plaintiff can prove that they would have done a certain thing if not for the accident.
For example, perhaps you had been planning to go to professional school (e.g. law or medical school) or were already in a professional program but then were injured in an accident and suffered injuries that left you unable to complete your studies. If you can prove to the court that it is likely you would have gone on to complete your program and but for your accident, you could claim that you lost the opportunity to earn those levels of income because of the defendant’s wrongful act.
Similarly, say you were in the midst of a trades or other work-related certification and an injury prevented you from completing the program. Again, you may be able to claim you lost the opportunity to earn a higher wage in your occupation and you should therefore be compensated.
Other situations that might entitle you to damages for loss of opportunity:
- you were in line for a lucrative promotion but are now unable to fulfill the requirements of the position due to your injuries;
- you were a key person in a business that lost contracts or could no longer operate successfully without you;
- you were an athlete or performer and had to stop training or give up on career prospects.
Loss of opportunity is a fact-specific determination: a plaintiff must provide evidence to show the likelihood of the opportunity coming to fruition, and a causal link between the accident and the loss of the opportunity.
Pain and suffering
Another important category of non-pecuniary damages is compensation for pain and suffering. This type of loss or injury is considered to be a non-pecuniary head of damages because we cannot put a dollar figure on how much a person’s pain is worth with any certainty. It is subjective – everyone will experience pain and suffering differently.
In Canada, there is a limit on the amount of damages that can be awarded for pain and suffering. The origins of the limit date back to a group of cases from 1978. We are proud that two lawyers from CAM LLP, Ron Cummings K.C. and Don Andrews K.C., argued before the Supreme Court of Canada on two of the three cases that became known as “the Trilogy”. The three cases that make up the Trilogy are:
- Andrews v. Grand & Toy Alberta Ltd., [1978] 2 SCR 229;
- Thornton v. Prince George School District No. 57, [1978] 2 SCR 267; and
- Arnold v. Teno, [1978] 2 SCR 287.
At the time the Trilogy was decided, the Supreme Court of Canada was concerned that damage awards for pain and suffering were rising and could become disproportionate, like the situation in the United States. They wanted to make sure that the dollar value of the awards would be fair to injured people but limited to a “reasonable” amount to avoid a rise in insurance premiums for everyone.
In the Trilogy, the Supreme Court capped damage awards for pain and suffering at $100,000. However, that amount is continually adjusted to reflect inflation, and today the amount of general damages for pain and suffering sits at approximately $460,000. Pain and suffering damages at the top end of the limit are typically reserved for plaintiffs who have sustained severe injuries, such as quadriplegia or serious traumatic brain injuries.
The Trilogy remains extremely important in Canadian law. The cases balance the need for certainty in the legal system for both plaintiffs and defendants. Insurance companies don’t have to raise insurance premiums out of worry that they will have to regularly pay out huge damage awards. On the other hand, injured parties can still be fairly compensated through other heads of damages, which apply in addition to pain and suffering damages, such as cost of future care or loss of future income.
Minor injury cap
The limit on damages for pain and suffering should not be confused with limits on soft tissue damages that may come into play if an injury is considered a “minor” injury as defined in Alberta’s Minor Injury Regulation. For more information about the minor injury cap see: Alberta Minor Injury Cap – Update 2024. The important thing to note is that the minor injury cap does not always apply to soft tissue injuries. There are exceptions. Therefore, it’s wise to talk to a lawyer about whether your case is caught by the cap, or not and what the means for your compensation claim.
Ranges of pain and suffering damages
The amount you may be awarded for pain and suffering will vary depending on a number of factors. Every case is different, and everyone’s injuries are different. No two people will experience pain and suffering to the same degree.
When awarding non-pecuniary damages, the court will consider your personal circumstances in coming up with an appropriate award. They will also look at other court cases where a plaintiff had injuries or circumstances that were similar to yours and consider what that plaintiff was awarded. The court will try to find cases from the same jurisdiction where you live, where the plaintiff was similar to you (e.g., age, stage of life, state of health before the accident) and sustained similar injuries.
Below are estimates of general damages that might be awarded for specific types of injuries in the province of Alberta. These estimates are extrapolated from pain and suffering awards given in cases decided by Alberta courts in the past ten years. Keep in mind that these are only approximations of what your claim might be worth. Some of the plaintiffs in these cases had multiple injuries in addition to the stated injury, which may contribute to a damage award at the higher end of the range. Other considerations affecting the amount of the award include how well the plaintiff recovered from their injuries, and what their state of health was like before the accident. Assessing the factors that apply in your situation and knowing how to effectively present evidence in support of a claim for compensation to insurance companies or the courts is one reason why it’s important to have an experienced injury lawyer representing you.
Based on a review of Alberta cases between May 21, 2014 and May 21, 2024 from the Carlson Personal Injury Quantum of Damages (LexisNexis database), the following damage ranges have been adjusted for inflation:
· Plaintiffs with soft-tissue whiplash injuries: $9,000 – $91,000;
· Plaintiffs with back injuries: $75,000 – $194,000;
· Plaintiffs with neck injuries: $28,000 – $91,000; and
· Plaintiffs with brain injuries: $114,000 – $194,000.
Again, it is important to remember that plaintiffs in the cases reviewed may have had other issues, as well as the specific injury, that resulted in an increased damages award. Similarly, compensation may be less than the ranges above if the injuries in question are caught by the minor injury cap. These are additional reasons why it is important to seek the help of an experienced personal injury lawyer to fully understand your case.
If you have been injured in an accident and are wondering what your claim might be worth, we can help. Our experienced team at CAM LLP can give you advice about the types of loss you could be compensated for, assess the evidence relevant to your situation, and guide you through the steps involved in pursuing your claim. CONTACT us today for a free legal consultation.
