For the injured person
If someone negligently causes another person injury (e.g. by car crash, sports accident, a walkway that causes a slip and fall), the victim can sue.
But what will they recover? What ‘losses’ does the law recognise as compensable?
General damages – After an accident, people may experience not only pain and limitation, but also a loss of their independence, self-esteem, and sense of identity. The courts call such losses ‘general damages.’
Because such losses can be highly individual (e.g. one person has a major accident and recovers quickly; another has an apparently minor injury and develops deep physical, social, and emotional distress), they are awarded on an individual basis.
The Supreme Court of Canada decided in 1977 that the maximum general damages anyone in Canada could be awarded in a personal injury claim was $100,000.00 (now $300,000.00 due to inflation). Canada’s Supreme Court decided “there is no medium of exchange for happiness” so “the award must be fair and reasonable…[but] also of necessity be arbitrary or conventional.”
Lost capacity to earn income – If an injury hinders a person’s ability to work short-term, calculation of their lost income is usually based on what they were earning at the time of the accident. With long-term claims, especially those involving a child, a stay-at-home parent, an unemployed person, etc., things get more complicated.
Thankfully the courts have decided that it is not the actual income per se that is lost but rather the person’s capacity to earn income. So a child’s family might be looked at to estimate what the child might have earned. A person who’s suffered a brain injury and is still working will have their job security or prospects considered.
Special damages – These are any specific, accident-caused expenses incurred up to the date of trial. E.g. a person injured in a car accident should have some of their rehab expenses paid under Part 7 of their automobile insurance, but other incurred expenses such as replacing damaged clothing, a wasted airplane ticket, etc. would be special damages.
Cost of future care – When injuries are long term, courts consider quality of life issues. And, as if to make up for the limitations on general damages for pain and suffering, future care awards can be generous. The philosophy appears to be that although money cannot replace lost happiness, it can and ought to be awarded to enable the victim to be rehabilitated physically, emotionally and socially as much as possible.
The only limit is that the proposed expense must be reasonable. So a person might be provided with 24 hour care in their home rather than being institutionalized. A person with artistic talent may be awarded the cost of art therapy. The cost of a companion might be given so that the injured person can travel as they would have had the accident not occurred. Each case is unique.
Other losses – Some losses which don’t fit cleanly into the above categories include an “in trust” claim for services provided by family members before trial, lost homemaking ability, income tax gross-up on a future care claim, and management fees.
After the death of a family member
Under our old common law, all claims relating to a person’s accidental death were extinguished with the victim’s death. Because this could create a significant financial hardship for families where the person killed was the primary bread-winner, provincial governments passed legislation allowing for claims in certain circumstances..
In B.C. claims can be brought by immediate family members for the following losses:
Future loss of shared family income – This involves a calculation of the portion of the deceased family member’s after-tax income that would probably have been spent on the family. (If the remaining spouse remarries or is about to, the income from the new partner must be offset against the loss.)
Recently the courts have recognised that in some cultures adult children are expected to support their aging parents. In such cases, parents offering evidence of this cultural expectation may claim for financial losses from their child’s death.
Future loss of household services – Family members often work as a unit, with each member assuming responsibility for tasks like meal preparation, child care, or home maintenance. Where a family member dies, the services he or she performed must either be replaced by remaining family members or purchased. The courts may award the market cost of replacing these services.
Future loss of wealth – If a person who would normally accumulate wealth (e.g. investments, inheritance) is killed before they can do so, the remaining family members can claim for what that person would have bequeathed them had he or she not died ‘prematurely.’
Special damages – These specific, accident- caused expenses incurred up to the date of trial might include funeral expenses for the family of the deceased.
Emotional losses – These differ from jurisdiction to jurisdiction. In B.C. the Court of Appeal recently made clear that grief over a lost family member is not recoverable, but the guidance and care which that member would have provided is. Normally claims for loss of care, guidance and companionship are brought by young children who’ve lost one or both parents. However, the courts have also awarded damages under this heading to parents (often elderly immigrants) who relied on their children to guide and care for them.
Personal injury law has proven to be a dynamic and responsive arm of the law, examining each person as a unique individual with their own abilities and potential. The law under the Family Compensation Act, however, remains seriously deficient, in that it does not adequately recognize the most profound loss anyone can experience: the loss of a loved one. Right now, the loss of a child goes essentially unrecognized, because the child provides no tangible benefit to the parents. Hopefully, the B.C. government will act to improve this legislation by ensuring the law recognizes that people have value for who they are, regardless of their age and level of economic productivity.
Excerpt from “ACCESS TO JUSTICE: Legal issues for the injured and people with disabilities,” written and produced by Faith Hayman, Barrister and Solicitor.
This is for informational purposes only and its contents are not intended nor should be considered to be legal advice.
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