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Damages in Personal Injury Cases (Ontario)

The entire field of personal injury law is rather effective at making sure that accident victims aren’t unjustly enriched by the benefits or moneys which they receive in their case.

Cases have been fought all the way to the Supreme Court of Canada to make sure that innocent accident victims aren’t getting their cake, and eating it too.

Insurance companies will fight tooth and nail to make sure that Plaintiffs don’t double dip.

It can be hard for innocent accident victims to understand that laws against double dipping exist. Many think that legal remedies are an all you can eat buffet. Unfortunately for Plaintiffs, they are not.

The laws surrounding remedies, damages and set offs exist because at law, an accident victim is not allowed to be put in a better position post accident, than they were pre-accident. The laws surrounding compensation exist to make a person whole again; and not to put them in a better position than they were pre-accident.

The accident should not be seen as a monetary windfall for the Plaintiff. It should be seen as a means to an end to make them whole for their past losses, and those losses moving forward.

Certainly, an insurer will have a more conservative valuation of what those losses are. While a Plaintiff will have a more aggressive valuation. Where that number lies is often somewhere in the middle. But, it’s important to state that a Plaintiff can only be awarded what’s recoverable at law.

Many clients want to see the Defendant suffer. They want to see the Defendant go to jail, or become their butler until the end of time as compensation for their damages. Plaintiffs want to own the Defendant’s home, all of their prized possessions, and receive a public apology in four national newspapers. The law just doesn’t work this way. A Judge cannot sent a Defendant to jail in a civil personal injury case. The only thing that the Judge can do is order the Defendant pay the Plaintiff compensation within the framework of the law.

Many Plaintiffs don’t like to hear what that legal framework of the law is when it comes to damages. That’s because the legal framework is rather rigid. Here’s an example.

After a serious accident, a Plaintiff will need to see various doctors. This can be really inconvenient and frustrating. Sometimes doctors are running behind schedule so you have to wait longer for the appointment to begin. Other times, the hospital file has not been transferred to the doctor, so they need to book another appointment. This can be very frustrating.

A Plaintiff does NOT receive damages for inconvenience, or for frustration because a doctor is running behind schedule. A Plaintiff can receive damages for having missed out on work. But, the Plaintiff was already missing out on work as a result of the accident. The Plaintiff does not get additional damages because the medical appointment ran late, or because another appointment needed to be booked down the road.

Damages for being upset, or inconvenienced do not exist.

That’s not to say that a Plaintiff cannot receive aggravated or punitive damages, or damages for mental distress. But these damages need to be proved in Court.linkedin-2-300x300

A classic example is a Plaintiff wanting to claim damages for mental distress. But, there is nothing in the clinical notes and records from the hospital or the family doctor which would suggest that the Plaintiff had sustained any sort of mental distress. No referrals were made to a therapist, social worker, psychiatrist, or psychologist to address these mental distress issues.

It goes again to show that a Plaintiff needs to prove their damages in Court. Simply stating that they are distressed mentally, does not necessary equate to an entitlement for damages for mental distress.

It is not enough for a Plaintiff to take the stand at trial during a personal injury case and tell the Judge and Jury that they sustained mental distress, or that they got hurt. This is self serving evidence which is not corroborated by any sort of medical evidence. There needs to be something else (usually in the form of medical evidence), to lend support to the Plaintiff’s statements that they sustained mental distress.

Damages for being mad, upset or frustrated don’t exist at law.

What damages do exist at law are general damages for pain and suffering (or non pecuniary loss).

These damages are not unlimited. There is a cap on damages for pain and suffering across Canada which as of the time of preparing this entry to the Toronto Injury Lawyer Blog currently sits at $442,450 or so.

That means that $442,450 is the very MOST, a Canadian can get for a Canadian personal injury case for their pain and suffering. That amount pales in comparison to some of the awards which we see granted in personal injury cases in the United States. But that’s because we have a different set of laws in Canada which we need to follow.

This also means that a Plaintiff cannot simply invent a number for their pain and suffering. Many GTA area clients want to see their personal injury cases result in payment which will afford them the ability to buy a home in Toronto proper. Homes in Toronto proper go for over $1,000,000. To put this into context, the maximum end for damages for pain and suffering will not exceed the price of a home in Toronto. Standard automobile insurance policy limits in Ontario are just $1,000,000. So after land transfer tax, realtor fees, legal fees and other closing costs, the maximum payout on a standard auto case will not pay for the cost of a home in Toronto proper.

Are there ways to protect yourself? Sure there are.

The cheapest way of doing so is to purchase excess insurance on your car or home insurance policies. You can easily double the amount of liability insurance available from $1,000,000 to $2,000,000 for around $20-$30 on your policy. You can also purchase Long Term Disability Insurance which contains some favourable riders (like the own occupation rider instead of the any occupation rider). Aside from that, there are other tips, but we can’t share them all here. If you have questions about the law of damages, personal injury cases, or tips on how to best protect yourself, give Goldfinger Injury Lawyers a call today.

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