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How do our courts value loss of health?

This article is featured in the Spring 2015 issue of Okanagan Health and Wellness.


Written by:
James Cotter, Partner
Leah Volkers, Articling Student


What is so precious and yet only truly appreciated when it is gone?  Our health. This is what many of us could answer to this question.  It is a quirk of human nature that most of us optimistically assume good health will be with us forever.   Unfortunately, that is the exception rather than the rule.


Where a person loses his/her health through the negligence of another, that person may have recourse for compensation through our judicial system.   Common examples include situations where a person is injured in a car accident; slip and fall accidents; boating accidents; medical malpractice; and product defects.   These matters often end up in our courts, and aside from determining if the defendant’s negligence is to blame for the injury, the courts will also need to determine the value of what the accident victim has lost.  In other words, the courts have the unenviable task of putting a value on something that most would consider to be priceless.    


The basic components of a tort claim:

In our modern tort system, the accident victim, or plaintiff, is required to prove that the negligent actions of another caused him/her injury.  If that hurdle is accomplished, the courts are then tasked with valuing the injury itself.  The general principal to be followed in such an assessment is to put the accident victim back in the place where he/she was prior to the accident, through an award of money.   As you may imagine, this is often not an easy task.


A claim will be made up of various “heads” of damage.  These will generally include damages for pain and suffering; damages for lost wages past and future; damages for care costs past and future; and any other out of pocket expenses or missed opportunities due to the injuries suffered in the accident.  Each kind of damage claimed needs to be proven according to the laws of evidence. 


Assessing and awarding non-pecuniary damages:

The damages you receive for pain and suffering as a result of injuries that you have sustained are called non-pecuniary damages. The award is determined through expert and lay person evidence, and takes into account many factors, including similar cases, and the person’s personal circumstances.  In 2006, the BC Court of Appeal set out the factors that the court should consider in determining an appropriate award for such damages in the decision of Stapley v. Hesjet. The factors are: the age of the plaintiff, the nature of the injury, the severity and duration of the pain, the level of disability, and the loss of lifestyle or impairment of life.[1]


Using these factors, the court assesses your claim and comes to a conclusion as to what amount of damages you are entitled to. Despite what insurance companies would have you believe, this is not a lottery win for Plaintiffs.  There is a cap on the amount of non-pecuniary damages a court can award. Many people assume that there is no limit to the amount of non-pecuniary damages that can be awarded. This is the model in the United States where large non-pecuniary damage awards have become commonplace. However, this is not the case in Canada.


The Supreme Court of Canada (SCC) dealt with the issue of increasing non-pecuniary damage awards in a trilogy of cases released in 1978.[2] In the Andrews decision, the first case in the trilogy, the plaintiff was a young man who became a quadriplegic as a result of a motor vehicle accident. The court commented that “this is the area where the social burden of large awards deserves considerable weight. The sheer fact is that there is no objective yardstick for translating non-pecuniary losses, such as pain and suffering and loss of amenities, into monetary terms. This area is open to widely extravagant claims”. [3] In Andrews, the SCC imposed an upper limit of $100,000 on non-pecuniary damages.[4]


In Thornton, the second case in the trilogy, the plaintiff was also a young man who became a quadriplegic, in this case as a result of an accident during his physical education class at school. The SCC followed the decision in Andrews, and reduced the non-pecuniary damage award to $100,000, stating that “the award under non-economic-related heads of damage should be a Canadian conventional award, adjusted to meet the specific circumstances of the individual case”.[5]


In Arnold, the third and last case in the trilogy, the plaintiff was a young girl who suffered physical and mental impairments after being struck by a car while crossing the street. The SCC again imposed the $100,000 cap on non-pecuniary damages. The justification for the upper limit on the amount that can be claimed for non-pecuniary damages was rooted in the social impacts of extremely high awards:


“The very real and serious social burden of these exorbitant awards has been illustrated graphically in the United States in cases concerning medical malpractice. We have a right to fear a situation where none by the very wealthy could own or drive automobiles because none but the very wealthy could afford to pay the enormous insurance premiums which would be required by insurers to meet such exorbitant awards”.[6]


Essentially, in the trilogy, the SCC recognized that it is important to provide some type of monetary benefit to an injured plaintiff, but that benefit should be limited for policy reasons.


Has the $100,000 cap on non-pecuniary damages changed since 1978?

Over 35 years later, the SCC has held firm in limiting non-pecuniary damages. There has not been an effective appeal to change the cap since the SCC decided the trilogy of cases in 1978.  The SCC did reconsider the $100,000 cap in Lindal v. Lindal. In that case, the court recognized the changing value of money over time and its impact on the original cap of $100,000. As a result, the court allowed the $100,000 cap set in 1978 to be adjusted to reflect inflation. [7]  As of 2014, the cap was adjusted to over $350,000.  As you can see, this amount of money for the pain and suffering of being rendered a quadriplegic seems almost absurd, but to truly value this loss would be impossible and would bankrupt our insurance system.


Pecuniary Damages:

Does this mean that the compensation for injuries suffered as a result of an accident is completely capped? No, the cap only applies to non-pecuniary damages. Non-pecuniary damages are not meant to be fully compensatory and they are not considered an economic head of damage. Non-pecuniary damages are meant to provide some solace and make life more manageable following an injury.


In Canada there are other heads of damages, called economic heads of damage, that can be claimed when you are injured. Economic heads of damage include damages for cost of future care, past income loss, and loss of future earnings (there are others but they require a legal explanation).  . Each of these heads of damages can be calculated with more certainty because they are based on hard numbers that relate directly to the specific situation of the injured plaintiff. As a result, the Court has not imposed any cap on the amount of damages that can be awarded under economic heads of damage.


So following the principal of attempting to place the plaintiff back in the position as though the accident had not happened, all economic losses that are proven are compensated completely.  As an example, if a plaintiff now requires physiotherapy twice a month for the rest of his life, then that cost is calculated, and awarded as a future care cost.  Similarly, if that same person can now only work half time, then the wages he will miss until retirement are calculated and an award is made to compensate for this loss.  As you can imagine, persons with high care needs, or a significant income loss, will receive large awards to compensate for those losses.


What does this all mean?

If you are injured as a result of the negligence of another, the court will consider numerous heads of damages to determine how to compensate you for your injuries. This means that you may be entitled to a wide range of damages, and it is important to understand the different damages you can claim, and the potential limits to those damages.


While it is true that some court awards seem large at first glance, usually they reflect a careful analysis of what the accident victim has lost.  In my experience, in the many years I have been a trial lawyer, the overwhelming majority of clients would choose to have their health back, rather than receive any amount of money.  Our health is truly a very precious commodity.

[1] Stapley v. Hesjet, 2006 BCCA 34 at para 46.

[2] Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, (Andrews); Thornton v. School District No. 57 (Prince George) et al.,  [1978], 2 S.C.R. 267, (Thornton); and Arnold v. Teno, [1978] 2 S.C.R. 287, (Arnold).

[3] Andrews, p. 261.

[4] Andrews, p. 265.

[5] Thornton, p. 284

[6] Arnold, p. 333

[7] Lindal v. Lindal, [1981] S.C.J. No. 108.


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