How do you measure Pain and Suffering: the History of Non-Pecuniary Damages

How do you put a dollar amount on the physical and emotional pain and suffering a person experiences after they have been involved in an accident? That is essentially the question that must be answered with regard to non-pecuniary damages, which is also referred to as general or non-economic damages. Non-pecuniary damages are damages that are not easily quantifiable and basically involves an assessment of how much money is appropriate to compensate for one’s pain and suffering and loss of enjoyment of life.

The history of non-pecuniary damages in Canada, as it is interpreted in the courts today, goes back to the late 1970’s, where a series of rulings in three key Supreme Court cases affected how the damages would be awarded. Often referred to as The Supreme Court of Canada Trilogy (or simply, The Trilogy), the rulings established a cap (i.e. a maximum amount of how much a victim could receive for non-pecuniary damages). The reasoning for the cap was three-fold.

• It was believed that because non-pecuniary damages were awarded for such subjective factors, there was a significant risk of the amounts getting excessively higher and higher, unless a monetary cap was put in place. 

• There was concern that without a monetary cap and as a consequence of the high amount of damages that may ensue, insurance companies would implement exorbitant premiums, thus making it difficult for the average Canadian to afford insurance

• It was surmised that implementing the cap would not be unfair to the victim, based on the premise that ‘pain and suffering’ losses are so subjective that there is no amount that can truly undo or make up for it. The justices stated that any specific financial burden or expense is already awarded to the victim through pecuniary or special damages, such as loss of income, medical costs and so on. Non-pecuniary damages were essentially an addition to the financial rewards, to help make the victim’s quality of life better, moving forward.

Therefore, a monetary cap for non-pecuniary damages was established at $100,000. Allowing for inflation over the years since the ruling, as of 2013, the cap now stands at approximately $300,000. There are some cases where the cap has been challenged and ultimately overruled, such as in defamation and sexual assault cases. However, for the most part, the monetary cap established by The Trilogy continues to govern the amount awarded for non-pecuniary damages in personal injury cases.

Factors Determining Non-Pecuniary Damages

There are many factors that are considered in personal injury cases when calculating an amount for non-pecuniary damages. They include:

• Age of the accident victim – This can factor in different ways. If a person suffered long-term injuries due to the accident, their age may be a factor in terms of how long they may be expected to live with this injury; for example, if someone can no longer be gainfully employed due to a severe or catastrophic injury, they may be entitled to loss of future wages until age 65 (retirement). However, for more temporary injuries, age may be a factor in terms of the length of time it may take for one to fully recover. A healthy 18-year old may recover from a similar injury a lot faster than a 70-year old and therefore be awarded less.  

• Nature of the Injury – A broken or sprained ankle is unlikely to have the same effect on an individual whose work involves sitting in an office as it would a physical labourer or a surgeon, for example. Therefore, the nature of the injury will be in considered in relation to other factors of the victim’s life. 

• Severity of the Injury – Naturally the severity of the victim’s injury will play a significant role in how much their lives are impacted, the time required for their potential recovery and how much they are awarded for damages.

• Disability – The existence of any disability due to injuries sustained from the accident will also likely play a significant role in the amount awarded, especially if the disability is one that is particularly severe and likely to seriously affect the individual’s daily quality of life.

• Loss/Impairment of Life – If the injuries sustained by the victim due to the accident are so severe that they physically cannot take care of themselves, that is likely to affect how much money they receive. 

• Loss of Lifestyle – This factor relates to the life the victim led prior to their accident. If they were a very active person socially and physically and that is significantly altered due to the accident, this will factor into how much they are awarded.

Types of Non-Pecuniary Damages

While non-pecuniary damages are also often called “pain and suffering damages”, there are other categories besides pain and suffering that falls under the umbrella of non-pecuniary damages. These include:

• Loss of Enjoyment of Life – This is awarded when the victim can no longer enjoy life as they used to, whether it is due to a physical inability because of the injuries they have suffered or a mental condition resulting from the accident, such as anxiety, PTSD, etc. 

• Loss of Companionship – This is typically awarded in wrongful death claims, when the surviving loved ones of the deceased are compensated for the loss of their deceased loved one’s companionship.

• Mental Anguish – As noted above, an individual may develop mental conditions as a result of an accident, such as, anxiety, panic disorder, depression and PTSD and may be compensated. 

• Lowered Quality of Life – As previously stated, sometimes the lifestyle a person led prior to an accident is severely affected, as they can no longer do the things they once did. This lowers the quality of their life and they can be compensated for it.

Being the victim of an accident caused by another person’s negligence can be a very difficult and sometimes devastating experience that affects one not just financially but emotionally as well. And it is important that individuals are compensated for their emotional needs just as they are their financial needs.

While some individuals are lucky to escape an accident with only mild to moderate injuries, many others suffer very serious, sometimes catastrophic injuries. Whatever the extent of your injury, you still owe it to yourself to consult with a knowledgeable and experienced personal injury lawyer that can help you successfully file a claim and receive the full compensation you deserve. The Injury Lawyers of Ontario (ILO) welcome any questions you have about your case and offer a free initial consultation to assess the particulars of your accident and injury.  Call or visit us today and let us help you in your time of need.