Catastrophic injuries, which seriously impact the livelihood and quality of life of an individual can be devastating – financially, and emotionally. People who have suffered from catastrophic injuries are entitled to compensation.
There are three categories of damages that sufferers of injuries can seek:
- Special Damages
Special damages, also called ‘pecuniary damages’ are financial damages resulting from a catastrophic injury. Pecuniary damages can include financial costs incurred in the past, present and future. To win pecuniary damages, it is important to keep a detailed financial record of bills, invoices, payslips, tax records, receipts, and expert advice.
Included in special damages are past and future lost income, lost opportunities, lost competitive advantage, medical costs, ‘out-of-pocket’ expenses, housekeeping and transportation costs, and financial damage to family members which can be claimed under Ontario’s Family Law Act.
- General Damages
General damages or ‘non-pecuniary’ damages, are awarded for pain and suffering. This includes intangible things like a loss of enjoyment in life and other subjective determinations. Unlike special damages, you can’t back up general damages with invoices or receipts. General damages rely on the determination of a judge (or an agreed upon valuation made between the parties outside of the courtroom). The cap on such damages was set at $100, 000 in 1978, which has been raised to around $330, 000 to account for inflation.
- Punitive Damages
Punitive damages are rarely awarded to sufferers of catastrophic injuries. Insurance companies are required to act in ‘good faith’ when they investigate claims. If the court determines that an insurance company has failed to act in ‘good faith’ then the court can choose to award punitive damages to the claimant.
Punitive damages are usually only awarded in the most serious cases of misconduct. In a 2006 case, the Supreme Court of Canada decided in Whiten v. Pilot Insurance to reaffirm $1 million in punitive damages. The original lawsuit resulted from Pilot Insurance refusing to pay out for a home fire, despite no evidence of arson. Although dealing with home insurance, the Whiten v. Pilot Insurance ruling is still a relevant personal injury claims.
Family Law Act Deductible
According to the Family Law Act, family members can sue for loss of guidance, care and companionship. If relatives choose to pursue this avenue then they should be aware that they could be subject to a $15,000 deductible in cases where they are awarded under $50,000.
Factors affecting compensation in cases of catastrophic injuries
When determining how much compensation should be awarded, the court take into consideration the injured party’s own action. If a claimant’s own actions contributed in some way to their catastrophic injury then it may be factored into the compensation. For example, if the claimant is 25 per cent responsible, and the award is determined at $100 000, then the other party will be responsible for paying $75 000.
Courts will also take into account the age, medical history, current and past employment, and nature of the injury itself. This includes typical recovery time, typical types of treatment, and the usual associated costs. Related past cases may also factor into the court’s decision.
Call a personal injury lawyer
If you or someone you know has suffered a catastrophic injury, then call a personal injury lawyer as soon as possible. The more time that passes, the more difficult it becomes to document and collect pertinent information.