Damages

The award of damages is the primary goal of the lawsuit brought by reason of personal injury or damage caused by the negligence or tort of the defendant. In the personal injury context there are certain universal principles applied in determining the measure or assessment of damages.

Firstly it is important to note that there is a one time assessment of damages at the time of trial. This assessment can not be revisited later and the best estimate must be made of what the plaintiff’s future losses may be on the basis of evidence prognosticating future occurrences and needs.

Secondly damage awards must distinguish between pecuniary and non-pecuniary losses. The injured plaintiff is to be fully compensated for pecuniary losses. Nevertheless this compensation may not be perfect due to practical difficulties in the presentation of evidence particularly so in relation to future losses. Compensation for non-pecuniary losses is to be awarded on a fair and reasonable basis. The measure of fairness is measured by reference to awards in similar cases. Non-pecuniary losses consist of loss of the amenities of life, pain and suffering, loss of enjoyment and loss of expectation of life.

The compensation is not to set a value on lost happiness but is to provide a reasonable solace to make life more endurable. By its very nature an award for non-pecuniary loss is to some extent arbitrary. There is also in Canada since 1978 an upper limit set on the amount of the award for non-pecuniary damages of $100,000.00 which continues to be adjusted for inflation since then. Pecuniary losses are divided into past and future losses. Past losses consist of loss of income, cost of care and rehabilitation expense and other consequential out of pocket expense. They must be calculable and documented.

Future losses consist of loss of earning capacity, the cost of future care and in certain circumstances losses relating to loss of housekeeping or home maintenance capacity, loss of competitive advantage or opportunity and loss of the benefit of an interdependent relationship. Unlike other losses prejudgment interest is not paid on the award. As the losses occur in the future it is also necessary to have an actuary calculate and provide evidence as to their present value. This present value is also subject to reduction for possible future negative contingencies that may have in any event affected the plaintiff’s earning capacity or life expectancy. They need not however be proved on the balance of probabilities that the future loss or damage will occur but only that there is a reasonable chance that they will occur. The degree of likelihood that the damage or injury will occur is used in assessing the award.

In Ontario family members are also entitled to receive pecuniary and non-pecuniary damages arising out of the injury or death of the plaintiff. In this instance the non-pecuniary losses are to compensate for loss of care, guidance and companionship. Good record keeping and documentation preservation practices are a vital ingredient to proving the quantum of damages.

At Obradovich Law we will advise you at the outset the procedures and guidelines you should follow to prove your claims.