Defining General Damages

In every motor vehicle accident, an individual may claim general damages. General damages is commonly referred to as non-pecuniary losses, non-economic damages, or quite simply damages for pain and suffering. These are damages that are not economic in nature, yet still, affect a person's lifestyle and quality of life. They cannot be calculated or quantified like lost income or medical bills, rather they compensate for things like pain and suffering, loss of quality of life, and emotional or psychological distress.

The Threshold

In Ontario, in order for an individual to recover general damages (i.e. damages for pain and suffering, also known as non-pecuniary losses) in a motor vehicle accident lawsuit, the individual must first satisfy the "Threshold Test" 1 by proving on a balance of probabilities that their injuries are both permanent and serious:

As denoted in section 267.5(5) of the Insurance Act- the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss from bodily injury or death arising directly or indirectly from the use or operation of the automobile, UNLESS as a result of the use or operation of the automobile the injured person has died or has sustained:

(a)   permanent serious disfigurement; or

(b)   permanent serious impairment of an important physical, mental or psychological function. 1996, c. 21, s. 29; 2011, c. 9, Sched. 21, s. 3 (3).2

The Deductible

In addition to satisfying the threshold test, an individual must also prove that their general damages exceed the statutory deductible in order to recover any amounts under this head of damages. The current statutory deductible for 2021 is $39,754.31 and increases each year.3   What this means is - if an individual is involved in a motor vehicle accident and their claim for pain and suffering is valued at an amount equal to or less than the current statutory deductible, they will receive nothing under this head of damages.[1]

It is important to note that this statutory deductible applies only to general damages - so if an individual has losses relating to housekeeping or income loss, for example, this deductible does not apply for those damages. The rationale for this deductible is to discourage smaller or frivolous tort claims, and operates to save insurance companies from paying out on smaller claims.

For example: An elderly and retired individual was on their way to the local grocery store, and while driving to their destination, was rear-ended by another motorist. As a result of the accident, the elderly individual sustained various injuries, and now has difficulty doing housekeeping tasks at home and can no longer enjoy the things they used to do like taking long walks, exercising or travelling with their family. The elderly individual sues the other motorist, and the two sides are unable to come to a fair settlement at mediation, so the case proceeds to trial.

At trial, after hearing the evidence and considering the facts of the case, the jury deliberates and agrees that the claim satisfies the threshold test, concluding the injuries sustained are both permanent and serious, and as a result awards damages. The jury arrives at a number for general damages which they think is fair to compensate the elderly individual for their injuries. In addition to an award of $10,000 of damages for housekeeping, the elderly person is awarded $60,000 for general damages relating to pain and suffering.

From this amount, the statutory deductible of nearly $40,000.00 is subtracted, leaving the insurance company liable to pay out a little over $20,000.00 to the elderly individual for the general damages. All in all, the elderly individual takes home $10,000 in damages for housekeeping and a little over $20,000 for general damages.



2. Ibid.



[1] As of 2021, the deductible of $39,754.31 is waived if an individual's claim is above the monetary threshold of $132,513.28. This monetary threshold is also subject to increase each year.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.