In Ontario, victims of accidents have the ability to seek compensation for something called “pain and suffering”. Compensation claims are called “tort” claims and are meant to recompense for general, or non-pecuniary damages (pain and suffering), or pecuniary or special damages (out of pocket, punitive or aggravated damages) which are more quantifiable.
In the case with pain and suffering, there is no way to quantify happiness and quality of life monetarily. In 1978, the Supreme Court of Canada established a cap on non-pecuniary damages, limiting these recoveries. The cap was set in a series of cases called “the trilogy”. At that time, the Court stated:
“There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions, but the award must also of necessity be arbitrary or conventional. No money can provide true restitution.”
In order to be qualified to receive pain and suffering awards, the plaintiff must meet certain criteria. Foremost, there is a statutory deductible of $30,000 for pain and suffering awards. This means that an claim needs to be determined in excess of $30,000 to be considered for an award. Secondly, the legislature has determined that no damages for pain and suffering are payable unless it satisfies these requirements:
1. Has the plaintiff sustained permanent impairment of a physical or psychological nature?
1. Is that function that was impaired an important one?
2. Is the impairment of the important function serious?
As can be imagined, these can be difficult to prove. The nature of “important” and “serious” need to be considered as appropriate to that individual and not considered broadly. These are based on the pre-accident situation of the plaintiff which is highly individualized. The Court must consider how the individual plaintiff was affected in his or her own individual way.
Passing these two sets of requirements is called “passing the threshold” for a personal injury case. If an accident victim cannot meet these requirements, they will most probably not receive any award for pain and suffering. In some cases, the plaintiff may be ordered to pay the legal fees of the defendant in an unsuccessful suit. Therefore, it is important that a plaintiff and his legal representation be confident on their ability to prove damage that meets the threshold standards.
It is crucial for victims of an accident to understand how these damage rules work. This way, there is a realistic expectation of what the award may be. If you or a loved one have been involved in an accident, seek the advice of a qualified personal injury lawyer. At AB Personal Injury Lawyer, we will schedule a free evaluation of your case and make the appropriate recommendations. Personal injury law is our focus. We have protected the rights of our clients in Sault Ste. Marie, Trenton, Chatham and the surrounding areas and look forward to protecting your rights as well.