Compensation for Personal Injury
| Author | Jamie Cassels |
| Profession | Professor of Law University of Victoria |
| Pages | 108-166 |
CHAPTER
4
COMPENSATION
FOR
PERSONAL
INJURY
A.
INTRODUCTION
AND
TERMINOLOGY
The
fundamental
principle
of
personal
injury
compensation
is
restitutio
in
integrwn:
restoration
of the
plaintiff
to her
pre-accident situation,
at
least
so far as the
losses
suffered
can be
repaired
by a
monetary award.
Obviously,
in
cases
of
serious
injury, money
can
never truly make
up
for
the
harm that
has
been
suffered.
But by
offering
a
full
indemnity
for
all
economic losses,
and
additional compensation
for
non-economic
losses
to
provide
a
measure
of
solace,
the law
strives
to
achieve this goal
as
nearly
as
possible.
In
Ratych
v.
Bloomer,
McLachlin
J.
stated:
The
award
is
justified,
not
because
it is
appropriate
to
punish
the
defendant
or
enrich
the
plaintiff,
but
because
it
will serve
the
purpose
or
function
of
restoring
the
plaintiff
as
nearly
as
possible
to his
pre-
accident
state
or
alternatively, where this cannot
be
done, providing
substitutes
for
what
he has
lost.1
The
restoration measure
of
damages
for
personal
injury
may be
compared with reliance damages
in
contract,
insofar
as the
goal
of
both
is to
restore
the
plaintiff
to the
position
as
though
the
encounter with
the
defendant
had not
occurred.
1
963.
108
Compensation
for
Personal
Injury
109
In
three cases decided
in
1978 ("the
trilogy"),2
each involving cata-
strophically injured youths,
the
Supreme Court
of
Canada
set out the
law
regarding personal injury compensation with some precision. Dam-
ages
are
awarded
for
both
past
and
future
losses,
and in
both
of
these
categories,
damages
are
further
divided
into pecuniary
and
non-pecuni-
ary
heads.
Pecuniary
damages
are
intended
to
compensate
all the
plain-
tiffs
financial losses. They cover past lost income
and
diminished
future
earning capacity,
the
cost
of
care (past
and
future),
and
expenses
incurred
as a
result
of the
injury.
Non-pecuniary
damages
are
intended
to
provide
a
measure
of
consolation
for
intangible losses, including pain
and
suffering,
loss
of
amenities,
loss
of
enjoyment
of
life,
and
loss
of
expectation
of
life.
Non-pecuniary damages
may
also include aggravated
damages
if the
injury
was
caused maliciously (see chapter
6).
Damages
are
also referred
to as
"special"
and
"general."
Special
dam-
ages
(or
"out-of-pocket" losses)
are
those
losses
and
expenses (such
as
income loss, medical treatment) that occur
before
trial. These
can
usu-
ally
be
proved with some precision
and
supported
by
direct evidence.
General
damages
are for
losses that will likely arise
in the
future.
Gen-
eral
damages, which involve
a
certain amount
of
speculation,
are
gener-
ally
proved through
the use of
expert opinion evidence.
B.
GENERAL
CONSIDERATIONS
This section introduces
and
encapsulates some general
factors
affecting
the
quantification
of
personal injury damages. Each
of
these
is
dealt
with more extensively
in a
separate chapter.
1)
Causation
The
plaintiff
has the
onus
of
proving that
the
defendant's wrong was,
in
fact,
the
cause
of the
injury. Causation problems typically arise when
the
plaintiffs
injury
is
unusual
for the
type
of
accident that occurred,
or
where there
is
evidence that
the
injury
is one
that
the
plaintiff
was
predisposed
to or
might have incurred anyway (the so-called
"thin
skull" situation). Causation problems
are
also common when
the
plaintiffs
injury
is not the
result
of a
traumatic accident
but is
rather
a
2
Andrews
v.
Grand
& Toy
Alberta
Ltd.,
[
1978]
[Andrews];
Thornton
v.
Prince
George
School
District
No. 57,
[Thornton];
Arnold
v.
Teno,
[Teno].
110
REMEDIES:
THE LAW OF
DAMAGES
"multi-factoral"
illness
or
disease. Such problems arise
in a
particularly
acute
fashion
in the
area
of
"toxic torts."
An
example would
be
prod-
ucts liability litigation over tobacco products,
and the
difficulty
faced
by
smokers
in
proving that their cancer
or
respiratory
illness
was
caused
by
smoking.
After
experimenting with
a
relaxed onus
of
proof
in
this
area,
and the
awarding
of
"probabilistic
damages," Anglo-Canadian
courts have returned
to the
traditional requirement that
the
plaintiff
must prove
the
cause
of the
harm
on the
balance
of
probabilities,
though courts will take
a
robust
and
pragmatic approach
to
these ques-
tions.3
Problems
of
causation
are
dealt with
in
chapter
10.
2)
Certainty
Personal
injury
compensation
is
often
largely about guessing
the
unknowable
and
pondering
the
imponderable.
The
questions will fre-
quently
be:
What would have happened
in the
plaintiffs
life
but for the
accident?
And
what
will
happen
during
the
remainder
of the
plaintiffs
life
as a
result
of the
accident? These questions
are
highly speculative.
The
plaintiff
has the
onus
of
proving
his
damages
and is not
entitled
to
recover
damages that
are too
uncertain. However,
the law has
devel-
oped
principles
that
aid the
plaintiff
in the
face
of
uncertainty. Perhaps
the
most important
is the
acceptance
by
courts
of
probabilistic evi-
dence regarding
future
events,
and the
awarding
of
probabilistic dam-
ages
to
compensate
for
lost chances. These
principles
are
discussed
more
fully
in
this chapter
and in
chapter
10.
3)
Remoteness
The
plaintiff
may
recover only damages that
are not too
remote.
In
per-
sonal
injury
law,
the
physical
and
psychosocial consequences
of an
injury
are
often
far-reaching. Several cases,
for
example, involve per-
sonal
injury
plaintiffs
who,
as a
possible result
of the
trauma
of the
accident,
seek
to end
their lives.
The
physical consequences
of an
injury
can be
unexpected,
and the
psychological, social,
and
financial
consequences even more
so. The
principles
of
remoteness
of
damages
are
discussed
in
chapter
11.
3
Snell
v.
Farrell,
311;
Athey
v.
Leonati
458.
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