When one of our clients is asked how much they think their case for pain and suffering is worth, they will often tell you that it’s worth $1,000,000 or more. It’s understandable why anyone would put such a high price on their own individual pain and suffering. Can you really put a price on these damages?
Canadian Courts have.
Unfortunately, the system for quantifying damages for pain and suffering is unfair to accident victims in Canada. Why? Because it’s impossible, at law, anywhere in Canada, to recover $1,000,000 or more for you pain and suffering.
It’s this way because back in 1978, the Supreme Court of Canada ruled on three decisions, commonly referred to as “the trilogy“.
In those cases, the Supreme Court established a cap (or limit) for damages for pain and suffering. Back in 1978, that cap was placed at $100,000. Today, with inflation, that cap is around $350,000. This is the absolute MAXIMUM which you can recover for your pain and suffering in Canada. The Supreme Court of Canada established this cap because they did not want our civil justice system, turning in to a free for all legal system like you see in many parts of the United States.
So, even at trial, if a jury awards you $1,000,000 for damages for your pain and suffering, the Judge will then limit that award to $350,000 or below. The Judge would probably instruct the Jury to return to the deliberation room and come back with another figure for damages for pain and suffering.
Maximum Cap damages are rarely awarded. In Ontario, such damages generally go to somebody who has lost all of their legs, arms, is brain injured and requires 24/7 attendant care. These damages are reserved for only the most catastrophic of accident cases that we see.
Knowing this information, we can better value and assess the damages for a personal injury claim.
Often, clients cannot understand how to quantify the value of their respective cases and the limits which the law presents. I learned a little trick at mediation not too long ago which was very useful.
A very skilled mediator compared the negotiation to resolve a car accident case, to the process of buying and selling a house. This was a neat comparison because clients can better understand the process of buying/selling a house; rather than the process of settling a claim for fair market value. It’s more tangible.
The seller of a house wants top dollar for their home. If their home is appraised at $500,000; and all of the other comparable homes in the area sold at around $500,000; then we have a good idea of what the home ought to be valued at, or listed at.
The appraisal and comparable listings are referred to as the objective criteria to asses the value of the home.
But, keeping that objective criteria in mind, if the seller lists the $500,000 home for $2,750,000, then it’s highly unlikely that they will ever be able to sell their home considering that it’s so overvalued. That price tag might even scare off potential buyers. You would never do this sort of thing if you were serious about selling your home.
A buyer on the other hand wants to purchase a home for as little as possible. If the buyer had it their way, they would spend $1 on the purchase of the home. If the buyer makes an offer of $1 on a $2,750,000 home; then it’s highly unlikely that the purchaser will ever get the home that they want. A purchaser won’t get the home they want making offers like that.
The same way that the market dictates the value of a home; the market AND the law also dictate the value of a personal injury case. Value it too high, it won’t settle and risk going to trial and getting less than you would if you negotiated properly (or risk getting zero).
The insurance company in every accident case wants to settle your claim for as little money as possible. The client on the other hand wants as much as possible for their case. The objective criteria for assessing the value of a personal injury case is previous case law, along with the individual characteristics of the accident victim and the circumstances surrounding their case. Things like their age, occupation, nature of their injuries, liability, collateral benefits and what impact the injuries have on their daily lives.
The objective criteria for a personal injury case are more complicated than those associated with the sale of a home. But, it’s the same idea.
If the purchaser does not tempt the seller with an offer near to fair market value (and vice versa), the deal won’t get done. The exact same principle applies to personal injury cases.
The major difference is that insurers and lawyers have a better idea of what fair market value is for a case and how to asses/value a case. Clients usually don’t have any legal training and it’s their first time dealing with accident law and how it works. Because the process is so new to them; and so personal; it’s very difficult to get a handle of what figures are reasonable and what figures are not.
Getting our clients to understand these concepts, and how cases in Canada/Ontario are valued is often the most difficult and trying job of being a personal injury lawyer.
Regrettably, accident laws in Ontario are written in favour of insurers in order to save them money. Why else would there be a $30,000 deductible for pain and suffering car accident claims, a 70% cap on past income loss prior to trial, set offs for collateral benefits, a threshold for damages to meet in car accident case along with caps on damages for pain and suffering. If the public had it their way, these laws wouldn’t exist. How do I know? I’ve been to Tim Hortons across Ontario. In Toronto, Thornhill, Markham, Mississauga, London, Keswick, Belleville, Brockville, Oakville, St. Thomas, Peterborough, Thunder Bay, Sudbury, Waterloo and beyond; 5.5 out of 6 people agree. Accident laws are too complicated and any laws favouring insurers (who can’t vote) at the expense of citizens (people like you and me who can vote) shouldn’t be laws at all.
I hope this Toronto Injury Lawyer Blog Post provided you with some insight on how to better understand the valuation process for a personal injury claim. If you have more questions about this topic, feel free to give us a call toll free at 1-877-730-1777 or send an email to firstname.lastname@example.org
On to more interesting things. Anyone catch the Toronto’ basketball team’s last second loss to the Nets? If Coach Casey is going to set up Amir Johnson for a 3 to win the game, he may have well have called my number (see toll free # above). I really think that in my hay day of playing basketball, that I was a much better 3 point shooter than Amir Johnson is, or every will be. Don’t believe me? Just ask the gym wall at Langstaff Secondary School in Richmond Hill. In any event, when you’re down by 2, and IN THE BONUS, there’s no need for your POWER FORWARD to take a 3. Take the ball to the hole and look for a better shot. Put some pressure on the officials to make a call. Also, when you haven’t played a game in 3 days, and your next game is in another 3 days, let your best players play more! You pay these guys millions of dollars to play. Not to sit. What are you resting them for? The playoffs? They’re young guys. Let the horses run.