What Is My Personal Injury Case Worth?
*This is the 4th blog in our series, The Life of a Personal Injury Case…. From accident to settlement or trial.
How Courts Determine the Value of a Personal Injury Case
One of the most common questions we are asked in our personal injury practice is, “What is my case worth?”. While the answer is complex and unique to each situation, this post provides general guidelines on how courts assess the value of personal injury claims.
The goal of compensation in a personal injury case is to put you back in the position you would have been in had the injury not occurred, as best as money can achieve. Courts recognize that no amount of money can truly compensate for the loss of one’s health, so they take a "functional" approach. Rather than attempting to value lost happiness, compensation aims to provide reasonable solace for the impact on your life. As the Supreme Court of Canada explained in Andrews v. Grand & Toy Alberta Ltd. [1978] 2 SCR:
"Solace" in this sense is taken to mean physical arrangements which can make his life more endurable rather than "solace" in the sense of sympathy… Money is awarded because it will serve a useful function in making up for what has been lost in the only way possible, accepting that what has been lost is incapable of being replaced in any direct way.
In other words, in assessing an amount to award a plaintiff for general damages for pain and suffering, it attempts to “…consider the matter from the other side, what can be done to alleviate the disaster to the victim, what will it cost to enable her to live as tolerably as may be in the circumstances”[1]. In other words, in determining an award for general damages, the court will focus on what can be done to help the injured party live as comfortably as possible in their new circumstances.
Factors Influencing the Value of Your Claim
Compensation is highly specific to each individual case, reflecting the unique impact of an injury on each person. Two people with the same injury can experience a markedly different impact, and as such would be compensated differently. An example provided by the Supreme Court of Canada in Andrews v Grand & Toy, supra, “the loss of a finger would be a greater loss of amenities for an amateur pianist than for a person not engaged in such an activity. Greater compensation would be required to provide things and activities which would function to make up for this loss.”
Therefore, the facts of your individual case are key, including:
1) Liability for the cause of the injury, including
Who is responsible for the injury? Is there shared responsibility between multiple wrong-doers?
If you are found partially at fault, your compensation may be reduced.
2) Nature of your injury
What is your diagnosis
Is your injury temporary or permanent?
How does your injury affect your ability to do your usual daily activities, work, complete household chores, and/or engage in recreational activities?
3) How was your health before the injury?
Is causation proven? See “Causation” section below for more information.
Compensation will be different for someone who had longstanding back pain which was worsened by the accident compared to someone who had no complaints of back pain before an accident.
Heads of Damages in a Personal Injury Case
A personal injury claim may include several types of compensation, called “heads of damages”:
1. General Damages: this head of damages aims to compensate you for losses that are not easily calculated, including:
a. Pain, suffering and lost amenities of life (plus interest).
b. Loss of capacity to perform housekeeping duties.
c. Loss or diminished capacity to earn employment income.
d. Anticipated future medical treatment and care costs
e. Support provided by family or friends (“quantum meruit claim”).
2. Special Damages: this head of damages aims to compensate you for losses that are quantifiable/calculable, including:
a. Lost wages in the past (plus interest) and calculable lost wages in the future.
b. Past costs incurred for medical treatment and other care (plus interest) and calculable treatment costs in the future.
c. Out-of-pocket expenses incurred as a result of the injury (plus interest).
3. Legal/Litigation Expenses: the head of damages contributes to the expenses incurred when bringing a personal injury claim:
a. A contribution to your legal fees (called “Costs”)
b. Reimbursement of costs incurred to process your case (called “Disbursements”)
Courts use past cases for guidance when determining the value of each of the heads of damages in a personal injury claim. Preference will be given to cases decided in the province where the injury occurred, and cases with similar injuries and impacts.
In some cases, legislation impacts the amount of compensation available. Case law and legislation impose upper and lower compensation limits. Determining the value of any claim is a case-by-case examination based on the facts that can be proven through evidence, and which are specific to your circumstances, injuries and impact.
Compensation Limits
Soft Tissue Injuries and Minor Injury Legislation
In Nova Scotia car accident claims are subject to the Insurance Act and its Regulations which place an upper limit on compensation for pain and suffering in cases defined as “minor injuries”, including sprains, strains and certain whiplash injuries that do not result in serious impairment. The definition of “minor injury” in the relevant legislation is: “a ligament/tendon sprain, muscle strain or whiplash associated disorder (WAD) injury grades 1 & 2 that does not result in serious impairment of a physical or cognitive function.”
If your injury is determined to be a “minor injury”, your compensation for pain and suffering will be limited, or “capped” at an amount set each year by the Superintendent of Insurance. This amount is the prescribed $7,500, adjusted for inflation each year. If you are injured in 2024, the “cap” amount is $10,400.
Whether or not your situation falls under the minor injury “cap” will depend on the facts specific to your situation. The law can be nuanced and complex, so it’s important to seek legal advice concerning these regulations.
Non-Minor Injuries
Injuries which are not soft-tissue in nature (for example, fractures, concussions, psychological injuries including post traumatic stress disorder) and soft tissue injuries that result in serious impairment are not subject to the Minor Injury Regulations. Precedent cases are used to assess the range for damage awards for your specific injuries, though there is an upper limit, discussed below. Please seek legal advice concerning your specific injuries and the potential value of your claim.
Catastrophic Injuries
The Supreme Court of Canada established an upper limit on compensation for pain and suffering in cases involving catastrophic injuries, such as severe brain injuries or quadriplegia. This cap represents the maximum amount recoverable for general damages in Canada. In 1978, the limit was set at $100,000. Adjusted for inflation, this upper limit is approximately $434,000 in 2024.
In setting this upper limit on catastrophic injuries, the Court reasoned:
There has been a significant increase in the size of awards under this head in recent years. As Moir J.A., of the Appellate Division of the Alberta Supreme Court, has warned: "To my mind, damages under the head of loss of amenities will go up and up until they are stabilized by the Supreme Court of Canada." (Hamel v. Prather[23], at p. 748.) In my opinion, this time has come.
It is customary to set only one figure for all non-pecuniary loss, including such factors as pain and suffering, loss of amenities, and loss of expectation of life. This is a sound practice. Although these elements are analytically distinct, they overlap and merge at the edges and in practice. To suffer pain is surely to lose an amenity of a happy life at that time. To lose years of one's expectation of life is to lose all amenities for the lost period, and to cause mental pain and suffering in the contemplation of this prospect. These problems, as well as the fact that these losses have the common trait of irreplaceability, [sic] favour a composite award for all non-pecuniary losses. …
… I would adopt as the appropriate award in the case of a young adult quadriplegic like Andrews the amount of $100,000. Save in exceptional circumstances, this should be regarded as an upper limit of non-pecuniary loss in cases of this nature.
Causation
To succeed in a personal injury claim, you must prove that your injury was caused by or contributed to by the incident. Pre-existing conditions will be considered, and courts rely on medical experts to differentiate between symptoms related to the incident and those from prior conditions.
A court will take into consideration your pre-existing medical conditions and the impact of those conditions on your life prior to the incident. This is a concept called “causation”. You will only be compensated for the injuries caused by the incident. Claimants often suffer from pre-existing conditions or have had previous injuries which have varying levels of impact on their life pre-accident. Also, the court must consider how your pre-existing conditions/injuries interact with your accident-related injuries. The Courts rely on medical experts to differentiate between symptoms related to the incident and those from prior conditions.
Conclusion
Assessing a personal injury claim can be complex. We recommend seeking legal advice regarding the value of your claim before negotiating your claim to ensure you receive fair compensation. The lawyers at Carter Simpson are experienced, passionate, and devoted to assisting those who have been injured in motor vehicle collisions and other types of accidents. We will advocate on your behalf with the insurance company to secure the best possible outcome through settlement or trial.
Do you have questions regarding what your case could be worth? Please don’t hesitate to contact us, Carter Simpson offers free consultations in most cases, with no obligation to retain our services moving forward.
Carter Simpson has prepared this document for information only. It is not legal advice. You should consult Carter Simpson about your unique circumstances before acting on this information. Carter Simpson excludes all liability for anything contained in this document and any use you make of it.