Can You Calculate Pain and Suffering Compensation? Maybe, maybe not

By Pace Law | August 20, 2019

A serious and debilitating injury results in an individual being impaired and suffering losses that are difficult to imagine, let alone accept.  With respect to awarding large sums to compensate accident victims for pain and suffering, Canadian courts have long had their hands tied.  However, that is not to suggest that the courts have failed to provide justice to victims.

Calculating compensation for pain and suffering is an inherently flawed search for justice. There are many factors that might undermine the process.  For example, the insurance claim may be insufficient, or perhaps the victim’s onerous medical expenses are adversely impacting his/her family’s standard of living. In such cases, justice has not been served and the victim is paying the price for another individual’s wrongdoing.

Can you calculate compensation definitively?

Can you or your lawyer calculate the compensation to which you are entitled for your pain and suffering?  Not a definitive figure, no. In contrast to American television and movie dramas portraying accident victims reaping huge financial awards, the reality in Canada is rather more sobering. Canada’s approach to ‘pain and suffering compensation’ (technically, non-pecuniary damages) is markedly different from that in the U.S.

In contrast to the U.S., Canadian courts take a more measured approach. There is an unspoken, but operative objective of compensating victims, while avoiding excessive awards; wrongdoers must be held responsible, but exorbitant awards should not become a burden on society.

Nonetheless, this is not to say that Ontario’s courts fail to make just awards for pain and suffering.

Present state of the law

The decision of the Supreme Court of Canada in 1978, in J. A. Andrews, Dorothy Andrews, Ivan Stefanyk v. Grand & Toy Alberta Ltd. and Robert G. Anderson remains, some 30 years later, the defining authority.

In its judgment, the court set what was effectively a limit on how much could be awarded for pain and suffering. It established a (soft) limit of for most cases, save for the most exceptional circumstances. This non-pecuniary award would account for:

  • Pain and suffering
  • Loss of amenities
  • Loss of expectation of life.

As a result of this decision, there is a common misconception that Canadian courts do not award restitution for pain and suffering. On the contrary, they try to calculate pain and suffering damages as part of pecuniary damages—that is, damages that can be quantified.

Court award for pain and suffering

In Andrews, the Supreme Court set a limit of $100,000, which would “be regarded as an upper limit of non-pecuniary loss in cases of this nature.” This amount has increased over the years, taking into account the cost of living and inflation. Despite that relatively modest sum, that does not mean personal injury awards have been insignificant. Courts carefully assess accidents and injuries, the loss of income potential. and the future care costs the victim is likely to incur.

Some of Canada’s largest personal injury compensation awards include:

Marcoccia v. Gill, Purba and Ford Credit Canada – $16.9 million in damages awarded by a Superior Court of Ontario jury, wherein the driver, the driver’s employer, and the insurance company were sued.

Sandhu v. Wellington Place Apartments – $14.2 million in damages in a case involving a toddler falling through a window, payable by a landlord who had failed to make repairs despite being asked repeatedly to do so; the award was upheld by the Ontario Court of Appeal.

Gordon & Morrison v. Greig – Nearly $24 million awarded to two passengers of a pick-up truck that crashed and was being driven by a drunken driver; the largest award in Canada for a spinal injury.

Therefore, when trying to calculate compensation, the entirety of the award must be considered. The cases cited attest to the fact that the courts will award damages to victims who have sustained life-altering injuries and impairments, thereby ensuring that they are justly compensated for loss of income, and future care costs.

Therefore, while pain and suffering compensation may be restricted, courts have found novel ways of ensuring that justice is served. In order to achieve that goal, it is essential to ensure that all of the liable parties are named as defendants in the tort claim. An experienced team of Toronto personal injury lawyers will understand the nuances of ownership, insurer liability, and other pertinent factors.

Court award for families

Ontario courts have also not shied away from compensating families. For example, a family member may have to make financial and practical sacrifices to provide long-term care to an accident victim. The families of accident victims, in such cases, may be entitled to compensation. In Gordon & Morrison v. Greig, the families of the victims were awarded damages for the part they would have to play in addressing the victim’s rehabilitation and lifelong care.

Pain and suffering insurance

Depending on your accident, there may be a limit on insurance liability. For motor vehicle accidents, there is a statutory deductible of approximately $38,000. Moreover, when insurers assess pain and suffering liability, they insist that a high threshold of serious and lasting injury must be met. As a result, many accident victims must pursue legal recourse by retaining experienced personal injury counsel to seek adequate compensation for the harm they have suffered.

In Ontario, the courts consider a great many factors when determining an appropriate award for pain and suffering. In arriving at a realistic calculation regarding the compensation to which you are entitled, it is necessary to understand not only the extent of your injuries and impairments, but also the courts’ approaches to and interpretations of personal injury claims.

Start by speaking to a Toronto personal injury lawyer you can trust to assess your case objectively. At Pace Law Firm, we represent your interests by providing you with experienced and informed consideration of your case. Speak to us to get a fair idea about the pain and suffering compensation you may be owed.