Understanding Special and General Damages awarded in a Personal Injury Suit

Damages are monetary compensation an injured person claims in a civil suit. Damages are claimed by, and awarded to someone who was injured or suffered a loss due to another party’s negligence.  A claim for damages may be resolved through negotiation, arbitration or trial.   In legal terms, the purpose of damages is to “restore the injured party to the position he/she was in before the incident”. There are different types of damages and the purpose of this article is to discuss the two most commonly awarded compensatory damages: general and special damages.

In all personal injury cases, the onus is on the claimant/plaintiff to prove that the defendant was liable for the accident and the injuries that resulted. A claimant must also substantiate the severity of their injuries and the associated financial costs of the losses that they suffered, which relate directly to the amount of damages for which they are eligible.  If a claimant is found guilty of contributory negligence - which means that their own actions contributed to their injuries and losses - then the court may reduce the amount of damages they are awarded.

General and special damages, which are also referred to as non-economic and economic damages, are the ‘standard’ damages awarded in personal injury suits.

General or ‘Non-pecuniary’ Damages

General damages award the injured person for the non-monetary losses that they endured due to an accident. Non-monetary losses include pain and suffering, loss of companionship, physical disfigurement, mental anguish, and a general loss of enjoyment in life that results from diminished wellness.

Understandably, general damages can be difficult to quantify because they pertain to a somewhat subjective loss, which means putting a specific dollar amount on them can be difficult. Consider, how do you calculate the monetary value for the loss of companionship when someone loses a spouse, parent or child, in a fatal car accident?

Everyone is unique; even in the same accident and under the same circumstances, no two people experience exactly the same injuries, nor do they heal and recover in the same way or timeframe.  One person may develop a psychological condition such as depression or post-traumatic stress disorder (PTSD) in the aftermath of a serious accident, while another comes away emotionally unscathed.  Although health care professionals have documented contributing factors that increase the likelihood of a particular injury or condition, it is generally acknowledged that healing is not a predictable process.

While there may not be an exact equation for quantifying non-pecuniary losses, there are some factors the court often considers when deciding on an appropriate amount. This includes the nature and extent of the plaintiff’s injuries, the age and general health of the plaintiff prior to the incident and severity of the incident. For example, accident victims who were catastrophically injured often receive a substantial award for physical pain and suffering.  The courts also rely on case precedents involving similar injuries, when determining damages for pain and suffering.

When it comes to quantifying pain and suffering, the law requires the plaintiff/claimant to meet a certain threshold of injury to qualify for these damages. The threshold requires that the accident victim suffered permanent serious disfigurement (such as loss of a limb, permanent scarring) and/or permanent serious impairment of an important physical, mental or psychological function. Other factors that may influence the award a plaintiff receives for general damages include the level of skill of their attorney and the findings of the judge and/or jury to their situation, should the case go to trial.

Special or Pecuniary Damages

Special damages are less complicated than general damages because they refer to monetary compensation for quantifiable losses suffered as a result of a defendant’s negligent actions. In other words, they are the specific financial losses suffered and the expenses that were incurred. Special damages can therefore be accurately calculated to a specific dollar amount. Special damages include: costs to repair and/or replace any damaged property; lost income while the patient was recovering; loss of any future income and earning capacity due to injuries; medical and rehabilitation costs; and housekeeping and home maintenance expenses.

The Process of Calculating/Receiving Damages

The process of calculating and receiving damages can be fairly simple or extremely complicated, depending on a number of factors.  One factor is the severity of injuries, and their diagnosis and treatment.  Another factor is the willingness of the at-fault party to accept liability and their insurer’s willingness to fully compensate the claimant. The process of achieving a settlement involves a number of key steps.

1. The first and most important step following any accident entails seeking proper and immediate medical care and assessment of your injuries, and then following up on all recommended treatments.   Keep a record of all health care visits and receipts for any expenditures. 

2. You have nothing to lose and everything to gain when you consult with a knowledgeable personal injury attorney after being injured in an accident caused by a negligent party.  Your initial consultation with an ILO lawyer is in most cases free and will allow you to determine whether you have a strong case for damages, the next steps in gathering evidence and also ensure that you receive the compensation you need for your recovery.  ILO attorneys have the necessary skill and experience in calculating an appropriate amount of damages you should expect to receive.  

3. If you choose to proceed with a claim against the negligent party, your attorney will notify the defendant and their insurer of your claim.  The insurance company will have their claims adjuster review and verify the details of the claim. They will also determine whether the defendant is liable (or likely to be held liable) for the accident and for the claimant’s injuries.  For any special damages being sought, the insurance adjuster will ascertain if the expenses submitted are supported by accurate and documented evidence. For general damages, the adjuster will compare the amounts claimed against what they believe is appropriate. 

4. The defendant’s insurance company’s claims adjuster’s often determines a lesser amount that they believe is owed to the claimant than the amount being claimed.  In most cases, the two sides will eventually negotiate a mutually agreeable settlement because both parties, most particularly the defendant’s insurance company, rarely want a personal injury case to go all the way to trial. The truth is that the majority of personal injury cases in Ontario are settled long before they reach a trial.

There  is a timeline for filing a claim for damages, which is generally two years from the date the injured person became aware of their losses.  Commonly, this date is two years from the date of the accident.  If injuries were sustained in a motor vehicle accident, an injured person may also make a claim against their motor vehicle accident insurance policy, which has an earlier timeline than a civil suit for damages.  For expert advice on your best course of action after being injured in an accident, call an Injury Lawyers of Ontario associate today.