General and special damages possible after a personal injury

By Paul Russell, LegalMatters Staff • A multitude of factors can affect the damages awarded after a personal injury, which is why it is difficult for anyone to say what your claim is worth, says Toronto personal injury lawyer Joshua Goldberg.

“Damages are awarded to those who are injured or suffer a loss due to another party’s negligence,” he says, adding damage claims may be resolved through negotiation, arbitration or trial, though very few make it to the final stage.

Goldberg notes that in legal terms, the purpose of damages is to “restore the injured party to the position they were in before the incident”.

If you want to make a claim for personal injury, he tells LegalMattersCanada.ca that you should start by claiming general or non-pecuniary damages, compensating you for non-monetary losses. Those include pain and suffering, loss of companionship, physical disfigurement, mental anguish, and a general loss of enjoyment in life that will result from a reduction in wellness.

The appropriate amount of general damages is determined by reviewing the case law and comparing the injury to other similar cases, says Goldberg, principal of Joshua Goldberg Law.

General damages are capped

There is a limit on how much can be claimed for general damages, he says, pointing to a 1978 Supreme Court case involving a man who was left a quadriplegic after an accident. Part of that judgment reads: “In the case of a young adult quadriplegic … the amount of $100,000 should be adopted as the appropriate award for all non-pecuniary loss, includ­ing such factors as pain and suffering, loss of amenities and loss of expectation of life. Save in exceptional circumstances, this should be regarded as an upper limit of non-pecuniary loss in cases of this nature.”

“This hard cap remains the standard used by the court, though today the equivalent amount, adjusted for inflation, is about $390,000,” says Goldberg.

He says the next step is to claim special damages, or quantifiable expenses you have occurred due to your injury.

No limit on special damages

“That could include therapies or medical care not covered by OHIP, special assistive devices, ongoing care costs or lost wages,” says Goldberg.

“Unlike general damages, there is no limit on special damages,” he explains. “Depending on the case, the special damages may form the largest part of a claim. They allow the injured person and their family to afford the treatment and compensation they need to get on with their lives.”

Goldberg says the amount of special damages are based upon such factors as the amount of income lost and the age of the injured party.

With any injury claim, he cautions it may take time for the extent of the injuries to be known and to determine a prognosis for recovery, “both important factors in determining an accurate valuation of your claim.”

Goldberg adds that the onus is on the claimant, or plaintiff, to show evidence of the severity of their injuries and the financial and non-financial losses that they suffered.

You need a personal injury lawyer

The Canadian Bar Association has stated that our justice system “is difficult to navigate, especially without legal help.

“Those of us who work in it daily agree,” says Goldberg. “When it comes to claiming damages after an auto accident, there’s a lot of very specific and challenging rules that the common person will not know.”

For example, he says there’s a statutory deductible of about $40,000 on any claim.

“That means that any settlement that is awarded to you has to be over $40,000 if you want to walk away with even a dollar,” says Goldberg,

He says many people who self-represent may not be aware there is a threshold plaintiffs have to meet to be deemed to have suffered permanent and serious impairment.

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“The idea behind those policies is that it limits minor claims,” says Goldberg. “That can be unfair to plaintiffs who don’t have visible injuries, such as soft tissue injuries, which can be crippling.”

Before entering a deposition, where the plaintiff’s answers to the opposing lawyer’s questions are recorded, he says he has them read a detailed memo, explaining what pitfalls to watch for in how they respond to questions.

Think of the details you need to articulate

“They cannot be untruthful, but I don’t want them just saying the first thing that enters their head,” Goldberg says. “They have to think through the details they need to articulate. That is why having a lawyer to prepare you for your deposition is so crucial.”

He notes that personal injury lawyers are criticized because they often do not charge an upfront fee, but instead take a percentage of the award.

“With every case, there is a risk we will lose and get nothing,” Goldberg says.

This system of billing also increases access to justice, he says, explaining that if he billed by the hour with an upfront retainer, as other types of lawyers do, many injured plaintiffs would not be able to afford the legal assistance they need.

“We do a lot of work to ensure that plaintiffs are in a position to be awarded money to compensate for their recovery, so we earn our keep.”