If you have been injured by the negligence of another, you may be wondering about the value of your case. This is particularly so if your injuries are preventing you from working or involve extraordinary medical expenses. Indeed, near the beginning of a relationship with a new client, I am often asked about the value of his or her case. Almost always, my answer is that it will take some time and information-gathering in order to be able to answer this question.
The following is a list of just some of the many factors which will be relevant in determining the value of a personal injury case:
- The type and severity of injuries suffered;
- The injured client's age and health before the incident;
- Impact of the injury on the client's job, hobbies, family life, and daily activities;
- The client's income/earnings before and after the incident;
- Medical treatment and rehabilitation required as a result of the incident;
- The client's overall recovery;
- If the client has access to other avenues or support/compensation, including accident benefits, extended benefits, and/or disability benefits; and,
- Whether the client caused or contributed to the incident.
In order to assess the value of a case, liability must be considered. In other words, your lawyer will need to consider who, if anyone, is at fault for the incident which caused the injury.
There may be several parties' conduct that need to be considered in answering this question, including that of the injured person. If an injured person is found to have some fault, the amount he or she will receive in damages will be reduced by the percentage assigned to that fault. For example, if an injured person's case is valued at $100,000.00 and he or she is found to be 25% at fault for the incident, the award will be reduced to $75,000.00.
If there is risk that a judge or jury may find that an injured person either caused or contributed to the incident, his or her lawyer should advise of this risk and it should be taken into account in deciding if or how to proceed with the legal case, including during any settlement discussions.
Once liability has been considered, damages or losses arising out of the incident will usually be assessed.
Maximum Medical Recovery
In order to fully assess damages or losses of an injured person, it is important that he or she has reached maximum medical recovery. This can take some time following an incident and often requires a medical opinion.
Once maximum medical recovery is achieved, various categories or "heads" of damages will be considered, including general damages, special damages, and punitive damages.
I will briefly summarize these categories below.
Non-pecuniary general damages are also known as non-pecuniary damages. They compensate an injured person for intangible losses, such as pain, suffering, and loss of enjoyment of life. These damages are not related to a financial loss and so can be more subjective.
The fairness and reasonableness of a general damages award is measured by the impact of a plaintiff's injuries upon his or her life. Assessment will involve comparing the injured person's situation to other like cases and to his or her life prior to the accident.
Canadian courts have set out a maximum amount that an injured Plaintiff can receive for non-pecuniary general damages. This amount is indexed by inflation on an annual basis and is currently about $390,000.00.
In motor vehicle cases, there is also what is called a "statutory deductible" which applies to general damages. This means that, depending on the total value of an injured Plaintiff's general damages, there may be an applicable deduction. In Ontario, if a Plaintiff injured in a motor vehicle accident is awarded less than $131,854.00 in general damages, it will be reduced by $39,556.00. If the injured Plaintiff is awarded more than $131,854.00 in general damages, then there will be no deduction. These numbers are increased annually by the rate of inflation.
Special damages are also known as pecuniary damages. In contrast to general damages, special damages are often more objective. Examples of special damages include the following:
- Past and future loss of income;
- Medical costs which have been and will be incurred;
- Housekeeping and home maintenance costs that have been and will be incurred; and,
In addition, some legal fees, disbursements (expenses), and taxes may be recoverable under this category.
Punitive damages may apply where the conduct of the at-fault party or parties is particularly egregious or high handed. The purpose of these damages is to punish the offender, rather than to award the injured party. Punitive damages are rarely awarded in Canada.
Assessing damages in a personal injury case is a complicated and nuanced matter, which requires knowledge of relevant legislation and case law; the involvement of experts; and experience.
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.