The term damages refers to types of financial compensation injured people are awarded in civil lawsuits, and they are typically awarded to individuals who were injured or suffered losses because of another party’s negligence. Claims for damages can be resolved through negotiated settlements, arbitration, or trials with the help of personal injury lawyer Hamilton.
The primary purpose of damages is to restore an injured person to the position they were in before the incident. There are different kinds of damages: special and general. All personal injury cases require a claimant or plaintiff to prove that a defendant was liable for an accident and they suffered injuries because of the accident.
People often need to prove the severity of their injuries and the accompanying financial costs of losses they suffered. When an injury victim’s case involves contributory negligence, meaning their own actions contributed to their injuries and losses, a court could reduce the amount of damages they will be awarded.
What is the Difference Between General and Special Damages in Canada?
The two most common kinds of damages in Canada are general damages and special damages. These two types represent the most common kinds of damages in personal injury lawsuits in Canada, and they are also known, respectively, as noneconomic damages and economic damages.
The phrase general damages refers to non-monetary losses a person suffers because of an accident. Common kinds of general damages often include pain and suffering, emotional distress, or physical disfigurement.
Calculating general damages is much trickier than special damages because noneconomic damages are far more subjective. Not only do people suffer individual and unique injuries, but the terms and lengths of their recovery can also vary.
It is possible that one person could be dealing with post-traumatic stress disorder (PTSD) following an accident while another person suffers no emotional harm whatsoever. Certain factors can play a role in determining general damages, such as the health of a person before their accident, their age, and the severity of their injuries.
Special damages, on the other hand, are usually much easier to calculate because they refer to quantifiable losses. Common kinds of special damages often include medical bills, lost wages, and property damage.
The amount of special damages that can be recovered usually depends on the amount of provable economic losses a person can establish.
What are Special Damages for Personal Injury?
Special damages are actual expenses a person incurs because of their injuries or losses. People are entitled to recover all pre-trial expenses they incur because of their injuries, so long as the injuries were caused by a tort and the decision to incur them was reasonable.
The most common kinds of special damages are, again, medical expenses, property damage, and lost wages or lost earning capacity. There may be other kinds of special damages in specific cases depending on a person’s losses.
All money a person has to spend on medications or treatments for their injuries will be special damages. This is true even if a treatment is of no tangible benefit so long as a person acted reasonably in seeking the treatment.
Courts could refuse to cover treatments that may have been covered by a Medical Services Plan (MSP) but were obtained privately. The deciding factor will often be whether a delay in waiting for an MSP-funded treatment might have hindered recovery or caused further harm.
Before paying for any private treatment, a person should get a doctor’s note that sets out the waiting time under an MSP and their opinion that the wait might cause further harm or delay in recovery. Special damages can also include adjustments people need to make to their homes or workspaces because of their injuries, provided that such adjustments are reasonable and not unnecessarily expensive.
What are Special Damages in Canada?
When discussing special damages in Canada, medical expenses can include the cost of an ambulance ride, the bill from an emergency room, and the bill from an emergency room doctor. Property damage expenses might include the cost of having a motor vehicle towed away from an accident scene and the costs of repairing a vehicle or replacing a totalled vehicle.
Special damages relating to injury treatment may include the costs of treating an injury, rehabilitation or physical therapy costs, payment of lost wages for injuries that prevent people from working, and any cost of household assistance for injury victims. Other property damage-related special damages could include reimbursements for repairs to damaged property, costs of replacing property that cannot be repaired, costs of rental vehicles while damaged vehicles are in the shop, and reimbursement for unique items damaged or destroyed in accidents.
Calculating special damages often necessitates the help of an experienced personal injury lawyer. Medical expenses are often calculated by adding up all previous medical bills with future medical expenses calculated based on the nature of treatment prescribed by a doctor, lost wages are calculated based on a person’s regular hourly or weekly pay rate multiplied by the time they will miss from work, and motor vehicle values are determined by using resources such as Kelley Blue Book.
Calculating other kinds of property damage can be trickier, but people could use past awards in similar accidents. In Redl v. Sellin, 2013 BCSC 581, the Supreme Court of British Columbia awarded the net instead of the gross amount of damages for lost benefits.
In Redl, the court rejected the position that “as full repayment of benefits to employers appears to be required, the net loss calculation should not be applied to the total subrogated portions of the income loss claim.” The court said it was clear under the Insurance (Vehicle) Act that the defendant’s liability for all income losses – regardless of whether a subrogated interest is claimed by an employer or an insurer – is for the net amount only.
The rights of an insurer or employer claiming a subrogated interest in an employee’s damages claim are no greater than those of the employee. The entire gross amount of Ms. Redl’s past income loss of $37,360.05 was subject to a deduction for taxes.
What is the Limit for General Damages in Canada?
Canada places a limit on the amount of general damages a person can recover for pain and suffering. The limit was established in 1978 by the Supreme Court of Canada to prevent general damage awards from becoming inflated and out of proportion, which appeared to be the case in the United States.
The Supreme Court’s goal was to ensure that financial recovery for a person’s pain and suffering was limited to an amount that would be considered reasonable. At the time, the Supreme Court determined that a reasonable limit on damages for pain and suffering was $100,000, but inflation has led to the limit being increased to $415,000 as of today.
This limit is usually reserved for the most catastrophic cases that involve injuries like quadriplegia, traumatic brain injuries (TBIs), or other highly severe injuries. Less severe injuries typically result in much lower damage awards that are more reflective of the degree of a person’s injuries and pain and suffering.
When Damages Are Not Awarded
Even when a person suffered an injury because of an accident, a court could deny damages in certain cases. There are four theories under which damages could be denied, which include:
- Remoteness — There may be cases in which the connection between a person’s injuries and a defendant’s conduct is too far removed. In such situations, ordering a defendant to pay damages may not be fair when the injuries were not foreseeable.
Personal injury law is typically governed by the principles of tort law, and a tort is a wrongful act or injury causing physical, emotional, or financial damage to another person. Under tort law, it will be presumed that a person intends the natural consequences of their actions, and a person who is negligent will be liable for any direct and immediate consequences caused by their negligence.
The scope of a person’s liability will not be limitless because when a person’s act or omission causes harm that was not reasonably foreseen or anticipated, the resulting loss may be too remote and not be compensable. Remoteness requires a court to consider whether a party’s wrongful conduct was the proximate cause of injuries, and when a court concludes it was not, then the negligent party may not be held responsible for the losses.
- Causation — Even when a person suffered damages because of an accident, they still must prove a defendant caused the damages. Courts usually rely on what is known as the “but-for” test, which asks but for a defendant’s conduct, would the plaintiff have suffered an injury?
A person must prove by 51 percent certainty or more that a defendant caused their losses. Causation can become very tricky when a person has pre-existing medical problems or conditions, as a court must determine whether any current medical complaints a person has were actually caused by an accident or whether they resulted from pre-existing medical conditions.
The presence of a pre-existing condition does not mean that a person cannot claim damages because a person must be put back in the position they would have been in absent a defendant’s negligence. People do not need to be put in a position better than their original one, but people who have conditions made worse by a defendant’s conduct can still hold defendants liable for the aggravation.
- Contributory Negligence — A damage award can be limited if a court finds that a person contributed to their accident, which is commonly known as contributory negligence. A good example of contributory negligence might be a person who suffered injuries in a motor vehicle accident but was not wearing a seat belt, as a person’s injuries may have been worsened by their own failure to take basic safety precautions.
Similarly, people involved in motor vehicle accidents can often be found to have committed contributory negligence when their own actions contribute to the cause of any accident. If a court determines that a person was partially responsible for their own injuries, they can still be awarded damages, although the amount will often be less than they would have recovered had they been completely faultless.
Courts often apportion responsibility for damages on a percentage basis, meaning the court will examine the extent to which each party was at fault. If a court determines a person’s damages are worth $100,000, but they were 25 percent responsible for their accident because of their contributory negligence, the damages would be reduced by 25 percent, or $25,000, and the total recovery would be $75,000.
- Mitigation — A damage award can also be reduced based on what a person did or did not do after they were injured. Courts expect people to mitigate their damages by taking reasonable steps to try to improve their own situation.
In most personal injury cases, injured people are expected to follow the advice of their medical professionals, complete rehabilitation programs, take medication, and undergo reasonable procedures likely to foster recovery. When victims do not take steps to mitigate their losses, courts may not award the full amount of damages.
Other Kinds of Damages
There may be three other kinds of damages awarded in a limited number of personal injury cases. These include:
- Punitive Damages — Courts can award punitive damages when a party commits egregious behaviour to punish the defendant and deter others from similar conduct in the future.
- Aggravated Damages — Aggravated damages are intended to compensate people for actual losses that occurred. The harm to a person will be measured, and appropriate damages will be awarded.
Common reasons for aggravated damages include breach of contract or denials of insurance claims. Proof must be provided to show that a person suffered mental distress and aggravation occurred.
Courts will award aggravated damages when a defendant’s conduct causes a person particular distress, grief, or humiliation. Whereas punitive damages are intended more to punish wrongdoers, aggravated damages are for the purpose of compensating plaintiffs.
- Nominal Damages — Courts could award smaller nominal damages awards when people only slightly infringe the rights of other people, plaintiffs fail to prove meaningful losses, or plaintiffs fail to mitigate damages. A good example of nominal damages might be a case of alleged battery in which a person was charged with the criminal offence of assault that did not involve any serious injury or a business owner claiming that a person’s untrue rumours about their company harmed the business without any proof of loss.
Speak with an Experienced Hamilton Personal Injury Lawyer
Derek Wilson Personal Injury Law Firm is based in Hamilton, Ontario and helps people with all kinds of personal injury cases in Ontario. Mr. Wilson has been practicing personal injury law since 1995 and now only deals with personal injury claims. Our firm will not charge you anything to handle your case unless we win or settle your case. You can call (905) 769-0418 or contact us online to schedule a free consultation.
