[vc_row][vc_column][vc_column_text]November 7, 2014
The first question just about every injured client asks their lawyer is “what’s it worth?”
Often, it is months or even years before we have an answer to that question. In Ontario, we do not assess damages for pain and suffering or loss of enjoyment of life on a “meat chart” basis where we identify the body part that is damaged and assign a price, like buying a rump roast at the butcher shop.
Other types of damages – out-of-pocket expenses, cost of care, income loss, housekeeping losses – can be estimated mathematically. In some cases there is a lack of good information, or uncertainty about the future, but courts do the best they can to measure those damages objectively.
The “non-pecuniary” damages are the tough ones to fix. They are compensation for the losses that cannot be compensated by money (that’s what “non-pecuniary” means) and yet our system is designed to pay money for them.
In Canada, the Supreme Court in the mid-1970s looked at this conundrum in detail and determined that the correct way to value that which is priceless is to:
- First, cap the maximum award (at the time at $100,000, now inflation adjusted to about $350,000
- Second, to try to assess the damages in each case not in some ratio to that maximum but rather by determining an amount of money that would give “solace” to the injured person, or allow them to buy things to ease their pain.
In practice, that has not really happened. Instead, courts, lawyers and insurance companies do a complex dance. We look at many factors specific to the person including:
- The nature of the injury
- The extent of the injury
- The extent of treatment (e.g. was surgery required?)
- The duration of the suffering
- The future prognosis
- Functional limitations
- Effect on the lifestyle of the specific person
- Age
- Occupation, and
- Gender (needless to say, this factor is now dubious as a distinction).
We obtain information from many sources – this is why it often takes quite a while to be able to even guess what an injury is “worth”. Sources might include:
- Medical reports or records
- The injured person, family and friends or co-workers
- Job descriptions
- Experts – medical, rehabilitation workers
- Photographs
- Social media.
Once we have all of that information, we do look at comparable cases and try to compensate similar limitations equally. Some confusion arises because people think of compensation as “similar injuries equally”, but this neglects the truth of the fact that the same injury might affect two people very differently – the classic example is a damaged pinky finger. Not necessarily a devastating loss to a lawyer; tragic for a concert violin player. Though the violin player will get economic (income) loss paid, she will also get more for her loss of enjoyment of life.
So, what’s it worth? A recent textbook published in Canada suggests that in a general sense all but the most serious losses fall into three broad categories:
- “moderate” e.g. whiplash $20,000 to $50,000
- “more severe” $50,000 to $135,000
- mild traumatic brain injury $75,000 to $120,000
While somewhat accurate, it ignores the art involved in figuring out which category each person fits into. It also does not include more serious claims such as severe debilitating chronic pain, serious brain injuries, or paralysis. What it does illustrate is that in Thunder Bay, and throughout Ontario, injured people cannot expect to get the dramatically high amounts they might occasionally hear about being awarded south of the border.
So, “what’s it worth”? That depends…
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