How Does the Court Determine What My Personal Injury Claim is Worth?


what are “damages”?

A tort is a wrongful act which causes another party to suffer a loss. Some types of torts, such as assault or battery, are intentional while others, like negligence, are unintentional. In both cases, the victim of the wrongdoing can recover their losses by making a claim against the person who harmed them. When torts result in financial loss, the courts can examine evidence such as employment or tax records to determine a victim’s out of pocket losses. Damages which don’t result in a direct financial loss are more challenging to determine. These damages, known as ‘general damages’, are awarded for pain, suffering, lost enjoyment of life, or loss of recreation. When assessing general damages, the courts look to past cases or ‘precedents’ for guidance so that all claimants with the same injuries are awarded similar levels of compensation. This is easier said than done. The courts must look at the individual circumstances of the case including the type of injury, the severity, how long the injured person was affected, and the long-term impact or complications of those injuries. The court also must consider whether the person was healthy and fit prior to the accident or whether the tort caused pre-existing injuries to worsen. 

General Damages

General damages compensate an injured person for their pain and suffering, mental anguish, loss of amenity, or loss of recreation. General damages are financial compensation for reduced enjoyment of life or the inability to do the activities you could prior to being hurt. The courts will look to precedents from past cases so that there is consistency in the amounts awarded for the same or similar injuries. A wrongdoer is responsible for all the damages they cause, even if the injured party suffers an unusual or unexpected injury.

Loss of Housekeeping and Valuable Services

Loss of housekeeping aims to compensate an injured person for their reduced capacity to perform household chores such as cooking, cleaning, yard and exterior household maintenance.

The 1998 Nova Scotia Court of Appeal case of Carter v. Anderson affirmed that loss of housekeeping was to be treated as its own ‘head’ or category of damage, separate and distinct from general damages for pain and suffering. Like general damages, loss of housekeeping isn’t a direct economic loss. Housekeeping and home maintenance are services that most individuals perform for themselves on an unpaid basis. The court must weigh the evidence of what a person did before the injury and what they cannot do after.

Cost of Future Care

Serious injuries often have long term repercussions. A person who becomes paralyzed will require mobility tools like a wheelchair and adaptations to their home and vehicle. These costs are significant and ongoing - a paralyzed person will require adaptions every time they buy a new car. Wheelchairs and mobility aids eventually require replacement or repair. The law recognizes that an injured person shouldn’t be expected to pay for adaptations with their own money. The courts can award damages for these expenses, known as cost of future care.

In the event of catastrophic injury, your lawyer might seek the input of a doctor, occupational therapist, or other professional familiar with the challenges faced by disabled persons to predict the type of care that you will require. Less serious injuries also have future care costs. Your health care professional may prescribe painkilling injections or massage to provide symptomatic relief. Future care covers everything from prescription medicines, to physical therapy, to support workers. These damages are unique to your case. A personal injury lawyer has the experience to understand the type of support and care you will need – and make sure this is included in your settlement.

Past Loss Wages

Past wage loss compensates an injured person for their inability to earn their regular income while injured. To seek this damage, you need to be working at the time of injury. Your own Section B insurance provides a modest sum while you are off work due to injury, but this is usually inadequate to make you whole. Section B provides an injured person a maximum of $250 per week in lost wage support. Some people have separate short- and long-term disability insurance through their employer or union. Disability policies will provide more money than Section B but these are also insufficient to provide 100% of your salary. Any remainder has to be recouped from the wrongdoer who caused your injury. When you receive pay from your employer by using your sick or vacation days, this is still considered past wage loss as those days are unavailable to you for unrelated sickness or leisure. The court will assess past wage loss by looking at your employment and taxation records.

Future Loss of Income or Diminished Earning Capacity

Past wage loss compensates a person for the past losses they have already suffered. Lost earning capacity is forward looking - it seeks to compensate someone for their reduced capacity to earn money in the future. If a carpenter loses their arm, they will have a reduced earning potential because they can’t work as quickly or efficiently, if at all. Future earning capacity must account for the possibility of promotions, wage increases, or skills and experience that will make you more marketable and thus eligible for a higher salary. This calculation also involves looking at the number of years you have left in the workforce. The courts will also consider the possibility that the symptoms will dissipate over time and apply a deduction if the evidence warrants this.

MacGillivray Law is Here to Help

No amount of financial compensation can undo the wrong you’ve experienced. It can, however, provide the resources you need to help with your recovery and your future. The calculation of damages is complicated and relies heavily on past case law. This is why having an experienced personal injury lawyer in your corner is so important. We have the skills and experience to fight back against insurance giants, who often have the upper hand against their insured.

If you have been injured in an accident and are unsure of your rights, contact us today for a free consultation.