When it comes to calculating personal injury damages, one size definitely doesn’t fit all.
Just as we are all unique individuals, every personal injury case is different. When calculating damages, the lawyer has to take into account many variables, such as the plaintiff’s age, work history, financial situation, number of dependents, type of injury, recovery prospects, medical care expenses, assistance required for personal care, housekeeping costs and much more.
In assessing a value of the claim, we need to consider the nature of the person’s injury and the affect it will have on their ability to work and participate in life’s daily activities. Some of the compensatory damages in a personal injury case are straightforward. It’s easy to quantify medical bills, for example. Others, such as putting a monetary value on pain and suffering, or the inability to enjoy favourite sports because of new physical limitations, are more difficult to calculate.
But again, when it comes to personal differences, you can see how some obvious ones would affect the amount of compensation awarded. For example, if a 20-year-old and a 75-year-old both suffered a horrible car accident and became quadriplegics, the younger person would obviously lose more years of earning power and be compensated accordingly.
Similarly, a businesswoman earning $100,000 a year would get more compensation than a man earning $30,000 as a cashier, because of her greater earning power.
Or if someone is slower to recover from an injury, experiencing more pain and suffering and requiring more medical attention, than another person, then they may be entitled to greater compensation.
While the first stage in calculating personal injury damages involves looking at differences, the next requires finding similarities. A lawyer will search for precedents – that is, how judges and juries have awarded similar cases in Ontario. If another person of a similar age, in similar circumstances has received a similar injury, then the amount they received in compensation might indicate what the client is entitled to.
Finally lawyers consider contingent factors that would affect the size of award. For example, if the court decided that your client’s actions contributed to the injury they received (contributory negligence), <link to contributory negligence blog post> then the settlement might be reduced accordingly.
There are other mitigating factors that could affect what a plaintiff receives. For example, if they aren’t doing the physical therapy recommended for them after an injury, that might reduce the reward.
All in all, trying to calculate personal injury damagers takes the full art and science of the legal profession.