What Damage Awards Do I Get from a Successful Tort Action?
In this blog, I’ll discuss what damage awards, in the form monetary compensation, you may receive following a successful tort action.If you are involved in a motor vehicle accident, then in addition to pursuing a claim against your own insurer to obtain accident benefits, you may also have a companion tort action or lawsuit against the at-fault driver, which is defended by his or her insurer.
If you want to learn more about the companion accident benefits claim, and kickstarting the accident benefits application process, then please click the “link” to read my blog entitled “How to Get Your Accident Benefits Application Started”.
If your tort action against the at-fault driver in a Superior Court of Ontario is successful, then the most common remedy that the Court will provide you is an award of damages for your losses. A simpler word for “damages” is “monetary compensation”. In tort law, we classify damage awards in accordance with the specific purpose that they are intended to serve, which are (1) compensation; (2) punishment; and/or (3) vindication. However, compensatory damages is easily the most common damage award, especially in personal injury law cases, where you are seeking compensation for losses already incurred in the past and anticipated in the future. Occasionally you might be awarded aggravated damages, as well as punitive damages that are designed to punish the defendant, but it depends on whether, amongst other things, the conduct of the defendant was reprehensible. Furthermore, there is a high threshold for establishing a basis for an award for these damages.
Restitutio ad Integrum
The fundamental purpose of damage awards is to place you in the position you would have been (no better or worse), “but for” the at-fault driver’s negligence. This fundamental, primary guiding principle in tort law behind the awarding of damages in personal injury law cases is captured in the Latin term “restitutio ad integrum” or “restitutio in integrum”, which means “restoration to original condition”. Obviously, if you have been seriously and permanently impaired, you can never be put in the position you would have been in, if the tort had not been committed. To this extent, restitutio ad integrum is not possible. However, money is a barren substitute for health and personal happiness, but to the extent within reason that money can be used to sustain or improve your mental or physical health, it may properly form part of your claim.
Normal Expectancies’ Measure
The tort measure of compensatory damages may be described as the “normal expectancies’ measure”, a term which, again, “more clearly describes the aim of awards of compensatory damages in tort: namely, to re-position” you “to the destination” you“would normally have reached … had it not been for the tort”. The measure is objective, based on the evidence. This method produces a result fair to both you and the negligent at-fault driver. You receive damages for future losses, as best they can be ascertained. The negligent at-fault driver is required to compensate you for those losses. To award less than what may reasonably be expected to be required is to give you too little and unfairly advantage the negligent at-fault driver. To award more is to give you a windfall and require the negligent at-fault driver to pay more than is fair.
Thin Skull Rule vs Crumbling Skull Rule
This balance of compensatory fairness between you and the negligent at-fault driver, is also expressed in these two legal principles and rules: (1) the “thin skull” rule; and (2) the “crumbling skull” rule. Further to the “thin skull” rule, the negligent at-fault driver is liable for your accident-related injuries and impairments, even if they are unexpectedly severe owing to a pre-existing condition. So, the negligent at-fault driver must take you, the victim, as he or she finds you, and is therefore liable even though your losses are more dramatic than they would be for the average person. However, it’s balanced out by the “crumbling skull” rule, which recognizes that your pre-existing condition was inherent in your “original position”. Therefore, the negligent at-fault driver need not put you in a position better than your original position. The negligent at-fault driver is liable for the injuries caused, even if they are extreme, but need not compensate you for any debilitating effects of your pre-existing condition, which you would have experienced anyway. The negligent at-fault driver is liable for the additional damage, but not the pre-existing damage.
The Principle of Finality
If your action in tort is successful at trial, then the Court will award you damages in a lump sum, in order to ensure finality or a clean break between you and the at-fault driver. In doing so, it will compensate you for your past loss, as well as provide you compensation for your losses anticipated in the future.
Heads of Damages
Due to the fact that your severe and permanent accident-related injuries will adversely impact several aspects of your life, there are several heads, or types, of compensatory damages that you may claim. Heads of damages are the elements that comprise your compensation claim, which the Court awards a monetary amount towards, and these elements make up your total damages or the amount of compensation awarded to you as a lump sum.
General Damages or Non-Pecuniary Damages
One of the tort awards in damages you can claim is non-pecuniary damages or general damages, which would be awarded to compensate you for your pain, suffering, loss of enjoyment of life and loss of amenities. However, you won’t obtain non-pecuniary general damages under sections 267.5(3)(a) and (b) of Ontario’s Insurance Act, R.S.O. 1990, c. I.8, unless you can prove that you suffered at least one of the following:
- A permanent and serious disfigurement; or
- A permanent and serious impairment of an important physical, mental or psychological function.
Therefore, in order to obtain a tort award in damages for non-pecuniary general damages, you have to prove that as a direct result of the at-fault driver’s negligence, which caused the motor vehicle accident, you sustained a permanent and serious impairment of an important physical, mental and/or psychological function, or a permanent and serious disfigurement, as per sections 267.5(3)(a) and (b) of Ontario’s Insurance Act.
Burden of Proof
The burden of proof is on you to establish, on a balance of probabilities, that you have suffered a permanent and serious impairment.
Ontario Regulation 381/03: Substantial Interference Requirement
Since a “serious impairment” is one that substantially interferes with your ability to function,
you also have to prove that you meet the criteria set forth in section 4.2(1) of Ontario Regulations 381/03, Court Proceedings for Automobile Accidents that Occur on or After November 1st, 1996, under Insurance Act, as amended by Ontario Regulation 381/03, because of your MVA.
You have to prove at least one of the three following things:
- Your accident-related impairments substantially interfere with your ability to continue your regular or usual employment at your full-time or part-time job, despite reasonable efforts to accommodate your impairments and your reasonable efforts to use the accommodation to allow yourself to continue employment;
- Your accident-related impairments substantially interfere with your ability to continue training for a career in a field in which you were being trained before the incident, despite reasonable efforts to accommodate your impairment and your reasonable efforts to use the accommodation to allow yourself to continue your career training; and/or
- Your accident-related impairments substantially interfere with your ability to continue in most of the usual activities of daily living, considering your age.
You also have to prove that your accident-related impairments are an important function to you, because the function is:
- Necessary to perform the activities that are essential tasks of your regular or usual employment, taking into account reasonable efforts to accommodate your impairment and your reasonable efforts to use the accommodation to allow you to continue employment;
- Necessary for you to provide for your own care or well-being; and/or
- Important to your activities of daily living, considering your age.
Also, you have to prove that your accident-related impairments:
- Have been continuous since the incident, and based on the medical evidence and subject to you reasonably participating in the recommended treatment of the impairments, are expected not to substantially improve, as you’re still suffering from it since the motor vehicle accident; and
- Are of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.
The Three-Part Test of the Legislative Threshold
So, factoring in the above aforementioned legislative definitions, again, found in sections 267.5(3)(a) and (b) of Ontario’s Insurance Act, and section 4.2(1) of Ontario Regulations 381/03, the Courts have adopted a three-part test to determine whether you meet the legislative threshold test, as established by the Court of Appeal for Ontario case entitled Meyer v. Bright (1993), 15 O.R. (3d) 12 (C.A.), and later in Ahmed v. Challenger,  O.J. No. 4188 (S.C.J.), at paragraph 17.
In determining whether you have met the aforementioned legislative threshold, the court will answer the following three questions sequentially:
- Have you sustained a permanent impairment of a physical, mental, or psychological function?
- If yes, then is your function, which is permanently impaired, an important one?
- If yes, then is the impairment of your important bodily function serious?
Question 1: Have you sustained a permanent impairment of a physical, mental, or psychological function?
To be considered permanent, your impairment must be continuous since the accident, and must, based upon medical evidence and you reasonably participating in recommended treatment of the impairment, not be expected to substantially improve. Your impairment must continue to meet the criteria of serious impairment and must be expected to continue without substantial improvement when sustained by persons in similar circumstances.
There is no requirement that there be objective findings to show your permanence. It is well established that chronic pain will meet the requirement of permanence for the purposes of the threshold. Nor is there a requirement to demonstrate that your injuries are perpetual. The requirement of a permanent injury is “met when a limitation in function is unlikely to improve for the indefinite future. A continuous impairment may not necessarily be the same as an “unbroken chain” of impairment.
The Courts have also decided that subjective complaints of pain, accounting for a diminishment in daily function unlikely to improve into the indefinite future, are also permanent for the purposes of the first question.
“Indefinite future” distinguishes injuries for which there is no predicted end limit (permanent) from injuries to which some future date of improvement may be predicted.
Question 2: Is your function, which is permanently impaired, an important one?
This part of the analysis is subjective and qualitative, and asks whether your impaired function is one that is important to you, having regard to you as a whole. Here are two other questions that are asked as part of the analysis:
- Is the function necessary to perform the activities that are essential tasks of your regular or usual employment, considering reasonable efforts to accommodate you, and your reasonable efforts to use that accommodation?; and
- Is the function necessary for you to provide for your care or well-being, or important to your usual activities of daily living, considering your age?
Each case will be as different as plaintiffs may enjoy different activities and interests, and may have different employment.
If the bodily function is important to you in particular, then that bodily function in question is an important one within the meaning of that expression contained in subsection 267.5(3).
In determining whether a function is important to your employment, it is necessary to consider your specific job. In determining whether a function is important to your activities of daily living, it is important to consider the specific activities that you engage in. So, again, the determination of whether the impairment in issue is “important” is a subjective analysis.
Your activities of daily living must be considered, which includes employment activities, household responsibilities, the ability to socialize with others, the ability to have intimate relationships, the ability to enjoy children, and the ability to engage in recreational pursuits.
Question 3: Is the impairment of your important bodily function serious?
At this step of the analysis the Court will determine whether your permanent impairment of function is serious.
An impairment is serious if it, again, further to section 4.2(1) of Ontario Regulations 381/03, substantially interferes with your ability to continue your regular or usual employment, despite reasonable efforts to accommodate you and despite your reasonable efforts to use the accommodation to allow yourself to continue employment. Alternatively, an impairment is serious if it substantially interferes with most of your usual activities of daily living, considering your age.
The phrase “substantial interference” does not mean you sustained a complete inability to carry on employment or your usual activities of daily living. Each case is decided on its own facts and an assessment made of the nature of the impairment, and how the impairment substantially interferes with your overall normal daily life and/or employment.
If you have chronic pain, then it may be possible for you to do all of the things that you did before the injury on an occasional or limited basis. The requirement that the impairment be “serious” may be satisfied even though, through determination, you resume the activities of employment and the responsibilities of the household, but continue to experience ongoing pain.
Upper Limits on Non-Pecuniary General Damages
In Canada, there is an upper limit or maximum amount that could be awarded to you in a tort lawsuit for non-pecuniary general damages. In 1978, a trilogy of cases involving catastrophically injured youths, were heard by the Supreme Court of Canada, which resulted in them setting a limit on monetary awards for non-pecuniary general damages at $100,000. However, this limit has increased since then in accordance with the rate of inflation, and as of October 2021 it is $409,972.
Failure to Meet the Legislative Threshold Test
If a Court determines that you don’t meet the aforementioned legislative threshold test, then it will award you nothing for non-pecuniary general damages and health care expenses or costs of care (discussed later). Of note, if you do not meet the legislative threshold for non-pecuniary general damages, you can still proceed with a tort lawsuit for pecuniary damages (discussed later), which are damages that are theoretically capable of monetary quantification, and must be considered separately from non-pecuniary general damages.
Legislative Threshold, Monetary Threshold and Deductible
Even if you meet the aforementioned legislative threshold test, further to section 267.5(7)3 of Ontario’s Insurance Act, there are automatic deductions on an award for non-pecuniary general damages, unless the award meets specific monetary thresholds. For example, since 2021 there is a $39,754.31 deductible from any award for non-pecuniary general damages, in accordance with the rules set out in section 267.5(7) of Ontario’s Insurance Act, unless your award for same meets the 2021 monetary threshold of $132,513.28.
So, for example, if you were awarded $130,000 for non-pecuniary general damages in 2021, then $39,754.31 would be deducted from your award, which would leave you with $90,245.69. The $39,754.21 doesn’t go to anyone or anything, but is rather just deducted to reduce the total damage award. The high deductible is designed to discourage plaintiffs, who sustained less serious and non-permanent injuries, from proceeding with a tort lawsuit.
If, however, you were awarded $133,000 for non-pecuniary general damages in 2021, then the 2021 $39,754.31 deductible would not be applicable, because your award surpassed the 2021 monetary threshold of $132,513.28, and therefore, you would keep the total amount of the award.
Your rights to damages is subject to any apportionment of damages due to your contributory negligence, which would reduce the overall total amount awarded to you in damages. So for example, if you were awarded $100,000 in total damages, but you were found to be 25% contributorily negligent, then your total damages would be reduced by 25% ($25,000) down to $75,000.
You can be found to be contributorily negligent, if for example, you weren’t wearing your seatbelt during the accident. The underlying rationale is that you essentially contributed to the severity of your accident-related injuries and impairments, because if you wore your seatbelt as you are required to do by law, then it is likely that your injuries and impairments wouldn’t have been as severe.
Ranges of Damage Awards
When the Court is making a determination of the award for non-pecuniary general damages to award you in a trial, it oftentimes refers to precedents, or monetary awards made in factually similar cases to yours. As a lawyer, I will conduct extensive legal research for you to find factually similar cases to your case, in order to determine the appropriate non-pecuniary general damage awards in settlement negotiations with defence counsel, which I could justify, as well as articulate to defence counsel what his or her trial-risk is if we go to trial. Generally speaking, the more serious and permanent your impairment is, and the greater impact on your ability to function in your overall daily life and/or employment, the more you can expect a higher monetary award for non-pecuniary general damages.
As the Court is assessing the appropriate award for the non-pecuniary general damages to be awarded to you following a successful tort action, it will consider the following relevant, non-exhaustive factors:
- Your age;
- The nature of your injury;
- The severity and duration of your pain;
- Your disability;
- Your emotional suffering;
- The impairment of your family dynamics, marital and social relationships;
- The impairment of your physical and mental abilities;
- Your loss of lifestyle; and
- Your stoicism, which shouldn’t penalize you unfairly.
You may be awarded aggravated damages if you are successful in your tort lawsuit.
Aggravated damages, which are rooted in an independent actionable wrong committed by the defendant, are designed to compensate you specifically where the reprehensible or outrageous conduct on the part of the at-fault negligent driver causes you a loss of dignity, humiliation, additional psychological injury or harm to your feelings.
You may be awarded punitive damages if you are successful in your tort lawsuit.
Punitive damages, which are also rooted in an independent actionable wrong committed by the defendant, are not designed to compensate you. Rather, the specific purpose of punitive damages is to punish the tortfeasor or negligent at-fault driver and deter future tortfeasors. A Court may award you punitive damages if the negligent at-fault driver’s conduct was malicious, reprehensible, oppressive or high-handed.
Psychological Injury or Nervous Shock Damages
If you suffer a reasonably foreseeable, recognizable psychiatric illness either as a direct result of being involved in the motor vehicle accident or being at the scene to observe the accident or its aftermath — caused by the negligence of the at-fault driver –, then the Court may award damages to you for your psychological injuries.
However, in order for the psychological injury or nervous shock damages to be awarded to you, the law is clear that your psychological harm must be “serious trauma or illness” that amounts to more than “upset, disgust, anxiety, agitation or other mental states that fall short of injury” or that are “serious and prolonged and [rising] above the ordinary annoyances and fears that people living in society routinely, if sometimes reluctantly, accept”.
I would retain either a psychologist or a psychiatrist to properly and accurately diagnose you in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), in order to lead evidence on your behalf to establish that you sustained a recognizable psychiatric illness.
Family Law Act Claim
If you were to sadly die from a motor vehicle accident caused by the negligence of the at-fault driver, then your estate cannot claim for an award in damages for your untimely loss, from a successful tort lawsuit. However, if you died, or sustained a serious and permanent impairment, or a serious and permanent disfigurement, then your spouse, children, grandchildren, parents, grandparents and/or siblings may claim for an award of damages further to section 61 of the Family Law Act, R.S.O. 1990, c. F.3.
The award in damages that they could claim further to section 61(2) of the Family Law Act, are as follows:
- Actual expenses reasonably incurred for the benefit of either your injury or death;
- Actual funeral expenses reasonably incurred;
- A reasonable allowance for travel expenses actually incurred in visiting you during your treatment or recovery;
- Where, as a result of your injury, your spouse, children, grandchildren, parents, grandparents and/or siblings provided nursing, housekeeping or other services for you, a reasonable allowance for loss of income or the value of the services; and
- An amount to compensate for the loss of guidance, care and companionship that your spouse, children, grandchildren, parents, grandparents and/or siblings might reasonably have expected to receive from you if your injury or death had not occurred.
However, it’s important to note that further to section 61(3) of the Family Law Act, their rights to damages is subject to any apportionment of damages due to your contributory negligence (discussed above), which would reduce the amount awarded in damages to them.
High End Range for Family Law Act Non-Pecuniary General Damages
The Family Law Act awards in damages for non-pecuniary general damages are not subject to the aforementioned upper limit caps established by the Supreme Court of Canada’s 1978 trilogy cases. However, the Court of Appeal for Ontario, in the case Fiddler v. Chiavetti, 2010 ONCA 210, endorsed their decision in To et al. v. Toronto Board of Education et al., 2011 CanLii 11304 (ONCA), of the assessment of $100,000 in 1992 for each of the parents of the deceased, which was deemed to be at the high end of an accepted range for loss of guidance, care and companionship damages. The Court of Appeal for Ontario concluded that the $100,000 high end had to be adjusted to $125,000 in January 2005 dollars, in order to correspond with the increase in the consumer price index.
Therefore, in order to ascertain what the high end range for non-pecuniary general damages is in current dollars, you simply have to figure out the cost in current dollars to buy a “basket” of goods and services that costs $100,000 in 1992 dollars, which factors in the rate of inflation.
Legislative Threshold, Monetary Threshold and Deductible
Even if you meet the aforementioned legislative threshold test, further to section 267.5(7)3 of Ontario’s Insurance Act, there are automatic deductions on an award for Family Law Act non-pecuniary general damages, unless the award meets specific monetary thresholds. For example, since 2021 there is a $19,877.16 deductible from any award for Family Law Act non-pecuniary general damages, in accordance with the rules set out in section 267.5(7) of Ontario’s Insurance Act, unless your awards for same meet the 2021 monetary threshold of $66,256.09.
So, for example, if you were awarded $65,000 for Family Law Act non-pecuniary general damages in 2021, then $19,877.16 would be deducted from your award, which would leave you with $45,122.84. However, if you were awarded $67,000 for Family Law Act non-pecuniary general damages in 2021, then the 2021 $19,877.16 deductible would not be applicable, because your award surpassed the 2021 monetary threshold of $66,256.09, and therefore, your spouse, children, grandchildren, parents, grandparents and/or siblings would keep the total amount of the award.
Family Law Act Threshold Test Requirement
If the claim from your spouse, children, grandchildren, parents, grandparents and/or siblings arises from a motor vehicle accident, then they will not be legally entitled to an award in Family Law Act damages for past loss of income and earning capacity, and non-pecuniary general damages, unless you died, or sustained a serious and permanent impairment of an important physical, mental or psychological function, or a serious and permanent disfigurement, in accordance with sections 267.5(3)(a) and (b) of Ontario’s Insurance Act, R.S.O. 1990, c. I.8.
Family Law Act Past Economic Loss Deductible
Further to section 267.5(1) of Ontario’s Insurance Act, any award to your spouse, children, grandchildren, parents, grandparents and/or siblings for an award in damages for past loss of income and earning capacity between seven days after the automobile collision and the start of trial, which is in excess of 80 percent of net income loss for accidents that occurred before September 1, 2010, and in excess of 70 percent of the gross income loss for accidents that occurred after, is deducted. So, in Ontario there is a legislative deductible for a past economic loss tort award in a Family Law Act claim.
So, for example, if your spouse, children, grandchildren, parents, grandparents and/or siblings were awarded $100,000 gross, in damages for past loss of income and earning capacity in 2021, then 30% ($30,000) would be deducted, which would bring the total down to $70,000. However, in the same example, they would receive the full amount awarded to them for future loss of income and earning capacity without any deductions.
Special damages are those damages that have manifested themselves prior to your trial and are therefore capable of precise calculation. Examples of special damages are, but not limited to, the following: hospital bills, lost wages, payment for housekeeping assistance, physician fees, et cetera.
Pecuniary damages are any damages that are theoretically capable of monetary quantification, such as income loss, and they are considered separately from non-pecuniary general damages.
Past Expenses and Losses
You can also claim a monetary award for special damages for past expenses and losses caused by a direct result of the negligence of the at-fault driver, which manifest themselves prior to trial, and can therefore be calculated with accuracy and precision. Examples of special damages for past expenses and losses, include, but are not limited to, the following:
- Your past loss of income;
- Your past loss of earning capacity;
- Your costs of care, including medical and other health care expenses, assistance with self-care and supervisory tasks, assistive devices;
- Your loss of housekeeping capacity;
- Your past loss of pension income/contributions; and
- Your expenses incurred by your family members (spouse, children, grandchildren, parents, grandparents and/or siblings) to the date of trial following your death or injury.
Past Economic Loss Deductible
Concerning motor vehicle accidents, further to section 267.5(1)2i, (1)2ii, (1)3i and (1)3ii of Ontario’s Insurance Act, R.S.O. 1990, c. I.8, any award for pecuniary damages in the form of either income loss or a loss of earning capacity, between seven days after the automobile collision and the start of trial, which is in excess of 80 percent of net income for accidents that occurred before September 1, 2010, and in excess of 70 percent of the gross income loss for accidents that occurred after, is deducted. So, in Ontario, in addition to a legislative deductible of non-pecuniary general damages if the legislative monetary threshold is not met, there is also a legislative deductible for a past economic loss tort award too.
So, for example, if you were awarded $100,000 gross, in damages for your past loss of income and earning capacity in 2021, then 30% ($30,000) would be deducted, which would bring the total down to $70,000. However, in the same example, you would receive the full amount awarded to you for your future loss of income and earning capacity without any deductions.
Past Cost of Care Claims
Another aspect of special damages that you can claim as an award following a successful tort lawsuit, is the cost of caring for you as a direct result of your injuries and impairments up to the date of your trial. Unlike an accident benefits claim, your costs of care can include care provided by a family member, as well as by a professional service provider. These services are inclusive of, but not limited to, the provision of housekeeping assistance and attendant care, as well as the cost of medical and rehabilitation treatment. In order to accurately calculate your costs of care with reasonable precision, I will retain an occupational therapist to complete a comprehensive past and future costs of care expert report.
Lastly, your award of special damages for costs of care may also be inclusive of out-of-pocket expenses for assistive and rehabilitative devices recommended by your healthcare providers, such as, but not limited to, canes, crutches, rollators to assist you with walking, support railings, et cetera.
Loss of Pension Income
If you’re unable to work as a direct result of your accident-related injuries and impairments, then it is likely that you will lose the pension contributions that your employer would have made on your behalf had you continued to work. So, you can claim an award of special damages for the loss of your future pension income. I would retain an accountant to calculate the value of your lost pension income with reasonable precision, which would be inclusive of the amount of pension income you lost to the date of your trial. Lastly, if you received pension benefits, then generally they are not deducted from your damages award.
Loss of Income and Earning Capacity
If as a direct result of your accident-related injuries and impairments you have lost the ability to function to earn income, then you can claim an award of special damages for your loss of earning capacity and your loss of future income. The special damages that I would seek on your behalf would reflect your loss of income either incurred to the date of trial or future losses. Your claim for loss of earning capacity can be made even if you weren’t working at the time of your motor vehicle accident, but I’ll have to lead evidence on your behalf that establishes you would have obtained employment “but for” your accident.
Loss of Competitive Advantage
Your claim for a loss of earning capacity and a loss of income can also be inclusive of a loss of competitive advantage and a loss of opportunity, such as a delayed graduation, where I’d lead evidence to prove that there is a reasonable possibility that your loss will occur.
Concerning a claim for an award for damages of a loss of competitive advantage, you’ll have to prove that due to your accident-related injuries and impairments, you’re no longer able to compete in the open marketplace with able-bodied and able-minded individuals, who don’t have accident-related injuries and impairments, but who have comparable qualifications or levels of skill, are capable of executing the tasks and duties required of the job, and may have additional certifications that you would’ve obtained “but for” your motor vehicle accident.
Loss of an Asset
Since your accident-related, diagnosed physical, psychological and/or cognitive/mental injuries and impairments have substantially interfered with your ability to carry out legitimate job functions, there will be positions or jobs that you will not be able to compete for in an open job market. Your inability to compete is the loss of an asset to you. In other words, your inability to freely compete in the open job marketplace for the type of work you would have competed for “but for” your motor vehicle accident, is the asset that you have now lost.
Traditional Lump Sum Approach vs. Annualized Income Loss Approach
When a Court quantifies your loss of competitive advantage, they’ll look at how your ability to compete for employment is impaired. There are two popular methods that have been adopted, which are the traditional lump sum approach without a specific regard to your calculated income loss and the annualized income loss approach, where the award represents your annual income loss to an expected retirement date. The present value of the latter approach produces a higher amount, whereas the ballpark figure using the former approach produces a lower amount.
Burden of Proof for Future Damages
When a Court is considering the proper award for future damages, it may cover not only all of your injuries and impairments suffered, and disabilities proved as of the date of your trial, but also the risk or likely future developments attributable to your injuries and impairments. Further to the Supreme Court of Canada, you’re “not required to prove on a balance of probabilities, the probability of future damage, but rather may be compensated, if” you “prove in accordance with the degree of proof required in civil matters, that there is a possibility or a danger of some adverse future development”.
Factoring in Contingencies
As the Court is ascertaining the appropriate value to assign to your future damage, since it doesn’t have a crystal ball to gaze into the future to know what your future life would’ve been like “but for” the motor vehicle accident, it will factor in things such as, but not limited to, your projected level of earnings, the length of your working life, and positive and negative contingencies, which might affect your future earnings. Factors affecting the degree of risk of your future economic loss and the possibility that all or part of those losses may have occurred apart from the wrong which is the subject of the litigation are referred to as contingencies.
Further to the Court of Appeal for Ontario, even if I lead evidence that establishes your risk of future pecuniary loss, this doesn’t mean that you are necessarily entitled to the full measure of that potential loss. Compensation for future loss is not an all-or-nothing proposition. Entitlement to compensation will depend in part on the degree of your risk established. The greater the risk of loss, the greater will be your compensation. The measure of compensation for your future economic loss will also depend on the possibility, if any, that you would have suffered some or all of your projected losses even if the wrong done to you had not occurred. The greater this possibility, the lower the award for your future pecuniary loss.
The Supreme Court Canada described the contemporary Canadian approach to taking into account contingencies, which might affect your future earnings, such as, but not limited to, business depression, early retirement, illness, promotion, time off work due to pregnancy for women, unemployment, et cetera.
Three Qualifications the Court Will Make Concerning Contingencies
There are, however, a number of qualifications which the Court will make in your case.
- First, these aforementioned contingencies implicitly are already contained in an assessment of the projected average level of your earnings, so the Court assumes that this figure is a projection with respect to the real world of work, vicissitudes and all.
- Second, not all contingencies are adverse, as the above list examples would appear to indicate. So the Court will also factor in your rewards of fortune too.
- Finally, the Court will also factor in the many public and private schemes in modern society, which cushion you against adverse contingencies.
Ultimately, the percentage deduction which is proper will depend on the unique facts of your case, particularly the nature of your occupation.
So, the Court will recognize, and give effect to, your contingencies, good or bad, which may reasonably be foreseen. The court will attempt to evaluate the probability of the occurrence of the stated contingencies, which are relevant to the unique facts of your case.
Two Categories of Contingencies
The law has recognized that contingencies can be placed into two categories as follows:
- General contingencies, which as a matter of human experience are likely to be the common future of all of us, e.g., promotions or sickness, et cetera; and
- Specific contingencies, which are peculiar to you, e.g., a particularly marketable skill or a poor work record.
General contingencies are not readily susceptible to evidentiary proof and may be considered in the absence of such evidence. However, where a trial judge directs his or her mind to the existence of these general contingencies, the trial judge must remember that everyone’s life has “ups” as well as “downs”. A trial judge may adjust an award for your future pecuniary loss to give effect to general contingencies, but where the adjustment is premised only on general contingencies, it will be modest.
If you rely on a specific contingency, positive or negative, then you must be able to point to evidence, which supports an allowance for that contingency. The evidence will not prove that your potential contingency will happen or that it would have happened had the tortious event not occurred, but the evidence must be capable of supporting the conclusion that the occurrence of your contingency is a realistic, as opposed to a speculative, possibility.
Legislative Threshold Not Applicable to Loss of Competitive Advantage
Lastly, the aforementioned legislative threshold that’s applicable to non-pecuniary general damages doesn’t apply to a loss of competitive advantage.
Return to Work Not Detrimental to Future Economic Loss Claim
Further to the case law, a return to work and even an increase in both post-injury income and hours worked, wouldn’t necessarily disentitle you from claiming an economic loss in the future, so long as you can prove that you sustained a serious and permanent impaired ability to compete.
Loss of Housekeeping Capacity
If you are unable to complete the work you usually did within your household as a direct result of your accident-related injuries and impairments, then you can claim an award of special damages for your loss of housekeeping capacity.
Concerning the issues that arise regarding pecuniary and non-pecuniary housekeeping losses, the Court of Appeal for Ontario has recognized three scenarios in which you will cope with your inability to complete your pre-accident housekeeping services, and they are as follows:
- Pre-trial housekeeping left undone;
- Pre-trial housekeeping performed inefficiently; and
- Pre-trial housekeeping undertaken by third parties.
First Scenario: Pre-Trial Housekeeping Left Undone
In the first scenario, you may leave some or all of your housekeeping undone. Where you are unable to perform some or all of your housekeeping tasks, and where a third party does not do the work in your stead, work will be left undone. In that situation, you will experience two sorts of intangible losses compensable in an award of non-pecuniary general damages. First, the modern law of damages recognizes your work, whether employment outside the home or housekeeping inside the home, provides a human being such as yourself with an important sense of purpose and contribution, the loss of which is a loss personal to you. Second, where work is left undone, you will be forced to live with the loss of the amenity of an orderly and functioning home.
In both cases, because the losses are intangible in nature, they are compensable within the award for non-pecuniary general damages. Your unpaid housekeeping left undone is often recognized only as a non-pecuniary loss on the basis that the only loss is the intangible one arising from the loss of the amenity of an orderly household and a loss of a sense of contribution. Your lost wages are clearly a pecuniary loss that is ascertainable at the time of trial. However, if you’re an unpaid homemaker, then you don’t suffer a loss of wages, but rather the loss of the benefit of having done the housekeeping, including the personal intangibles, such as the sense of purpose and contribution referred to above, as well as the loss of the amenity of an organized household.
Second Scenario: Pre-Trial Housekeeping Performed Inefficiently
In the second scenario, you may perform some or all of your housekeeping functions, but with increased pain and decreased efficiency. You may continue to undertake your housekeeping, but you may experience pain or difficulty in doing so. You may be required to work more hours post-accident to accomplish the same amount of pre-accident housekeeping. If you work inefficiently, then your non-pecuniary award would be increased to reflect your increased pain and suffering. To the extent that your inefficiency also results in a less clean and organized household, this is the loss of an amenity that the award for non-pecuniary damages would also take into account.
These aspects of your non-pecuniary award will be assessed in a manner similar to the assessment of non-pecuniary losses if you were faced with increased pain and suffering in performing your income-earning tasks. In determining the significance of the components of your loss, the Court will consider the evidence about your pre-accident and pre-trial housekeeping, the particulars of your increased pain and suffering and diminishment in housekeeping, and the impact of any reduction in the standard of housekeeping on you.
Third Scenario: Pre-Trial Housekeeping Undertaken by Third Parties
In the third scenario, you may rely on paid or unpaid third parties on a part or full-time basis to perform some or all of your housekeeping. Irrespective of which of the three scenarios is applicable, you will suffer losses arising from your inability to do work that you previously undertook within your household. The law is well established that where you incur a pre-trial out-of-pocket loss by hiring a replacement homemaker, you may claim the reasonable replacement cost of that homemaker as special damages. Similarly, if I lead evidence on your behalf that you agreed or were otherwise obliged to compensate a third party for housekeeping services rendered pre-trial, then you may claim that amount as special damages.
Furthermore, unlike an accident benefits claim, you can also seek compensation for the gratuitous work done by your family members, but you must either “plead or lead sufficient evidence to support such a claim” where for example, your family members or friends provide housekeeping services for you as a result of your injuries and impairments during the pre-trial period. Courts have recognized that even though your family members can freely choose to spend their lives looking after infirm members of their family, they are not expected to do so on a gratuitous basis.
Global Assessment of Non-Pecuniary Damages
Lastly, even though past pre-trial loss of housekeeping capacity is a non-pecuniary general damage too, the Court will not create a separate heading for it, but rather include it in its global assessment of all your non-pecuniary general damages.
Future Expenses and Losses
You can also claim an award of damages for your ongoing or future expenses and losses, which will either continue or be incurred after the date of your settlement or your trial. I would retain a forensic accountant to calculate with reasonable precision your expected future losses or extraordinary costs that’ll likely occur throughout your lifetime as a direct result of your accident-related injuries and impairments. Further to the Court of Appeal for Ontario, I only have to lead evidence to establish that there is a substantial possibility that your ongoing or future expenses and losses, and damages will occur.
Since your future damages will be paid to you as a lump sum at either your settlement or your trial, I will calculate on your behalf the present day value of your anticipated ongoing or future expenses and losses. Further to Ontario’s R.R.O. 1990, Regulation 194: Rules of Civil Procedure, as I calculate the present day value for you, I have to use the “discount rate” noted in Rule 53.09(1) to determine the amount of an award in respect of your future pecuniary damages, to the extent that it reflects the difference between estimated investment and price inflation rates, which is:
- for the 15-year period that follows the start of the trial, the greater of,
a. the average of the value for the last Wednesday in each month of the real rate of interest on long-term Government of Canada real return bonds (Series V121808, formerly Series B113911), as published in the Bank of Canada’s Weekly Financial Statistics for the period starting on March 1 and ending on August 31 in the year before the year in which the trial begins, less ½ per cent and rounded to the nearest 1/10 per cent, and
b. zero; and
2. for any later period covered by your award, 2.5 per cent per year for each year in that period.
Your claim for future damages would be inclusive of, but not limited to, the following:
- Your loss of earning capacity;
- Your ongoing costs of care, including medical and other health care expenses, assistance with self-care and supervisory tasks and assistive devices;
- Your future loss of housekeeping services;
- Your future loss of pension income/contributions; and
- Your future losses experienced by your family member following either your death or injury.
Further to section 267.8(1) of Ontario’s Insurance Act, R.S.O. 1990, c. I.8, even if you prove that you are entitled to an award of future damages for income loss and loss of earning capacity, subject to exceptions, the amount shall be reduced by the following amounts:
- All payments in respect of the incident that you have received or that were available before the trial of the action for statutory accident benefits in respect of your income loss and loss of earning capacity;
- All payments in respect of the incident that you have received or that were available to you before the trial of the action for income loss or loss of earning capacity, under the laws of any jurisdiction or under an income continuation benefit plan; and
- All payments in respect of the incident that you have received before the trial of the action under a sick leave plan arising by reason of your occupation or employment.
Future Care Costs
If as a direct result of your motor vehicle accident you sustained serious and permanent injuries and impairments, or a serious and permanent disfigurement, which requires ongoing and future care, then you can claim an award for future care damages that project the costs to provide you care, which wouldn’t have been necessary “but for” the accident.
In theory your claim for the cost of future care is a pecuniary claim for the amount which may reasonably be expected to be expended to place you in the position you would have been in if you had not sustained your accident-related injuries and impairments. This, of course, corresponds with the fundamental purpose of tort law, which is best captured in the old Latin term “restitutio ad integrum” or “restitutio in integrum”, which, again, means “restoration to original condition”.
The Court will not conjecture upon how you will spend the amount awarded to you for your future costs of care, so this isn’t something that will adversely affect its consideration of the proper basis of compensation within a fault-based system. You are free to do with that sum of money for your future costs of care, as you like. Financial advice is readily available, plus you have the flexibility to plan your life and to plan for your particular contingencies.
Quantifying Your Future Costs of Care
When a Court is making a determination of your future damages for costs of future care, it’s essentially peering into the future and fixing damages for future care as best it can, once and for all at the time of your trial, subject to modification on appeal. In doing so, Courts will rely on the evidence that I lead on your behalf, as to what care is likely to be in your best interest. Then the Court calculates the present cost of providing that care to you, and may make an adjustment for the contingency that the future may differ from what the evidence at trial indicates.
I retain an occupational therapist to complete a comprehensive future costs of care report, in order to assist us in providing such cogent evidence to your settlement conference or at your trial. I then retain a forensic accountant to calculate the present cost of providing you the care that the occupational therapist outlined that you’ll need in the future costs of care report.
The award for your future costs of care damages will reflect the reasonable or normal expectations of what you will require.
Failure to Meet the Legislative Threshold Test
Again, if a Court determines that you don’t meet the aforementioned legislative threshold test, then it will award you nothing for your health care expenses or costs of care.
Causation vs. Contingencies
The Supreme Court of Canada made a distinction between the assessment of causation, which deals with the past, and contingencies, which deals with the future.
Past Events: Causation and Certainty
Your past events, which comprise your special damages, must be proven, and once proven they are treated as certainties. In your tort action, the Court will declare whether the at-fault driver was negligent, and that conclusion cannot be couched in terms of probabilities. Likewise, the negligent conduct of the at-fault driver either was or was not a cause of your injuries and impairments. The Court will decide, on the available evidence, whether the thing alleged has been proven; if it has, it is accepted as a certainty.
The role of the Court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain.
Future Events: Contingencies and Probability
However, when the Court is assessing damages, which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court will make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even in the amount of damages which it awards.
I hope you found this information valuable. Rudder Law Group’s website is your one-stop source for answers to all of your legal questions concerning catastrophic impairment law and personal injury law.
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