A personal injury accident is often subject to financial compensation or “damages.” A successful claim will require that the negligent party be identified, a degree of fault be proven to lie with this party, and the injuries are shown to be caused by the accident. In a legal sense, the “damages” you are entitled to pursue refers to monetary compensation that is claimed by you in a civil action or awarded by a court as a result of being injured or suffering loss because of the wrongful conduct of another party.
A claim for personal injury damages is sometimes known as a “tort” claim. In a tort action, the damages are compensatory; they are intended to restore you, to the extent possible, as the injured party, to the position you were in before being harmed, at least monetarily. Consequently, damages are generally remedial. For motor vehicle accident claims, financial limitations apply to compensation for small claims; a $36,540 deductible (which will increase every January 1st by inflation) currently applies unless the claim exceeds $121,799 (which will also be adjusted for inflation every January 1st).
Depending on the nature of the loss or injuries in your accident, several remedies may be available to you. These remedies include general (non-pecuniary) damages, special (pecuniary) damages and family member claims.
General damages (or non-pecuniary damages) are called “general” because they cannot be assessed exactly. Such damages include losses suffered include pain, suffering, disfigurement, loss of enjoyment of life and loss of amenities. These damages are often the largest component in a personal injury settlement.
While non-pecuniary damages are intended to compensate for past, present and future losses, the maximum payable is capped by a 1978 Supreme Court of Canada decision, which currently, adjusted for inflation, is approximately $350,000 for the most severe cases of pain and suffering. The reasoning for the cap is provided from Andrews v. Grand & Toy Alberta Ltd.  2 S.C.R. 229
; it is that such damages cannot really be compensated with a financial payment. Accordingly, such damages should be viewed as simply providing additional money to make life more endurable.
In determining fair compensation related to the particular circumstances of a case, the factors considered include as your age, the nature of the injury, the severity and duration of the pain, the level of the disability and the loss of lifestyle or impairment of life. Beyond these general damages, special damages may also be claimed.
Special damages (or pecuniary damages) are particular damages resulting from the specific circumstances of the case, which can be quantified and measured financially. Examples of such losses include: medical bills, lost wages and earnings, housekeeping expenses, and property loss, which are explained briefly below.
Medical & Rehabilitation Expenses
Medical expenses and/or rehabilitation costs are found in just about every personal injury case. You may need prescription medications, physiotherapy, massage and/or chiropractic treatment, psychologist services, and possibly attendant care services. You may also need future rehabilitation, so both past and future costs are considered in your final settlement.
If you are unable to work for a limited period or indefinitely as a result of the injuries you sustained from the accident, compensation for your resulting income loss is available, including loss of future income for your loss of earning capacity. Although, for motor vehicle accidents, you may be eligible for income replacement through your automobile insurer, your income loss could still be potentially high as the required statutory accident benefit payments for income loss are extremely low.
Housekeeping and Home Maintenance Services
As part of your compensation, you may need coverage for housekeeping and home maintenance services that you are no longer able to perform as a result of your injuries. A limited amount for housekeeping and home maintenance services is available from the insurer for motor vehicle accident claimants, but paid services from family members do not qualify.
If any personal property (e.g., clothing, glasses or other items) was damaged as a result of the accident, you are entitled to reimbursement for repairs or for compensation for the fair market value of the property that was lost. Any property loss for an automobile accident that is not covered by the insurer may be recovered in the lawsuit (tort claim).
Family Member Claims
In addition to general and special damages, personal injury tort claims sometimes entail family member claims, which are pursuant to Ontario’s Family Law Act (FLA). Family members, such as spouses, children, grandchildren, parents, grandparents, and brothers and sister, may be able to sue for their financial losses related to care, guidance and companionship suffered as a result of your injuries. A person does not need to be biologically related to qualify if he or she can demonstrate being in a relationship of some permanence with you (e.g., co-habitation between adults) or being an adopted child.
FLA claims covered by the Insurance Act are subject to a $18,270 deductible unless the claim exceeds a new inflation adjusted amount of $60,899, in which case the deductible does not apply. There is no deductible in situations where death occurs as a result of the accident.
Contact Bildfell Law for a Personal Injury Lawyer in Petrolia or Sarnia
If you have questions about your personal injury accident and would like to know what damages you may be eligible for in a personal injury lawsuit, contact a personal injury lawyer in Petrolia or Sarnia. Ron Bildfell
has over 35 years of trial experience helping personal injury accident victims to successfully obtain fair compensation. At Bildfell Law, we can help you succeed with your claim. Contact us