Compensation for Personal Injury

• Author: Jamie Cassels/Elizabeth Adjin-Tettey
• Profession: Professor of Law, Vice President Academic, and Provost, University of Victoria/Professor of Law, University of Victoria
• Pages: 111-179

111

ChaPter 4

COMPENSATION FOR

PERSONAL INJURY

a. introDuCtion anD terminoLogy

The fundamental principle of personal injury compensation is restit utio

in integrum: restoration of the pla intiff to her pre-accident situation, at

least so far as the losses suffered can be repai red by a monetary award.

Obviously, in cases of serious i njury, money can never truly make up

for the harm that has been suffered. But by offering a full indemnity

for all economic los ses, and additional compensation for non-economic

losses to provide a me asure of solace, the law strives to achieve thi s

goal as nearly as possible. In Rat ych v. Bloomer, McLachli n J. stated:

The award is justif‌ied, not bec au se it is appropriate to punish the de-

fendant or enr ich the plaintiff, but because it w ill serve the pur pose

or function of restoring the pl aintiff as nearly as possible to his pre-

accident state or alternatively, where this c annot be done, providing

substitutes for what he ha s 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 plaint iff to t he position as though the encounter with

the defendant had not occurred.

1 [1990] 1 S.C.R. 940 at 963.

REMEDIES: THE L AW OF DAMAGES112

In three cases decided in 1978 (“t he trilogy”),2 each involving cat-

astrophically injured youths, the Supreme Court of Canada set out

the law regarding personal injury compensation with some precision.

Damages are awarded for bot h p ast and fut ure losses, and in both of

these categories, d amages are further divided i nto pecuniar y and non-

pecuniar y heads. Pecuniary damages are intended to compensate all the

plaintiff ’s f‌inancial losses. They cover past lost income and diminished

future earning capacity, the cost of care (past and future), and expenses

incurred a s a result of the i njury. 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-pecuniar y damages may al so include aggra-

vated damages if the injury was caused maliciously (see Chapter 6).

Damages are also refer red to as “special” and “general.” Sp ecial

damage s (or “out-of-pocket” losses) are those losses and expenses (such

as i ncome loss, medical treatment) that occur before tr ial. These can

usually be proved with some precision and supported by direct ev i-

dence. General damages are for losses that wil l likely arise in the future.

General d amages, which involve a cert ain amount of speculation, are

generally proved through the use of exper t opinion evidence.

b. genera L ConsiDer ations

This section introduces and encapsulates some general factors affecting

the quantif‌ication of personal injury dam ages. Each of these is dealt

with more extensively in a separate chapter.

1) Causation

The plaintiff has the onus of provi ng that the defendant’s w rong was, in

fact, the cause of the i njury. Causation problems typically arise when

the plaintiff’s injury is unusual for the type of accident that occurred, or

where there is evidence that the injury is one that the plaintiff was pre-

disposed to or might have incur red anyway (the so-called “thi n skull”

situation). Causation problem s are also common when the plaintiff ’s

injury is not the result of a traumatic accident but is rather a “multi-

factoral” illness or disease. Such problems arise in a par ticularly acute

2 Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C .R. 229 [Andrews]; Thorn ton v.

Prince George School Distr ict No. 57, [1978] 2 S.C .R. 267 [Thornton]; Arnold v.

Ten o, [1978] 2 S.C.R. 287 [Teno].

Compensation for Pers onal Injury 113

fashion in the a rea of “toxic torts.” An example would be products lia-

bility litigation over tobacco products, and the diff‌iculty faced by smok-

ers in prov ing that their cancer or respiratory i llness was caused by

smoking. After experimenting with a relaxed onus of proof in thi s area,

and t he awa rding of “probabilistic damages,” Anglo-Canadia n courts

have returned to the traditional requirement that the plaintiff must

prove t he cause of the harm on the balance of probabilities, t hough

courts w ill t ake a robust and pragmatic approach to these questions.3

Problems of causation are dealt with i n Chapter 10.

2) Certainty

Personal i njury compensation is often largely about guessing the un-

knowable and pondering the imponderable. The questions will fre-

quently be as follows: What would have happened in the plaintiff ’s

life but for the accident? And what will happen during the remai nder

of the plaintiff’s 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 developed principles t hat aid the plaintiff in the face of

uncertainty. Perhaps the most important is the acceptance by courts

of probabilistic evidence regarding future events, and the awardi ng of

probabilistic damages to compens ate for lost chances. These principles

are discussed more fully in this ch apter and in Chapter 10.

3) Remoteness

The plaintif f may recover only damages that are not too remote. In per-

sona l injur y law, the ph ysical a nd psyc hosocia l conse quences o f an injur y

are often far-reaching. Several cases, for example, involve personal 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 unexpect-

ed, and the psychological, social, and f‌inancial consequences even more

so. The principles of remoteness of damages are discussed in Chapter 11.

4) Mitigation and Collateral Benef‌its

The plaintiff in a personal injury case has an obligation to mitigate. Thi s

means t hat he is obliged to take rea sonable steps to achieve rehabilita-

3 Snell v. Farrell, [1990] 2 S.C.R. 311; Athey v. Leonati, [1996] 3 S.C.R. 458; Resur-

f‌ice Corp. v. Hanke (2007), 45 C.C.L.T. (3d) 1 (S.C.C.).