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 restitutio

in integrum: 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 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 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 [1990] 1 S.C.R. 940 at 963.

REMEDIES: THE LAW OF DAMAGES112

In three cases decided in 1978 (“the 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 both past and future losses, and in both of

these categories, damages are further divided into pecuniary and non-

pecuniary 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 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 aggra-

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

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

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

as income loss, medical treatment) that occur before trial. These can

usually be proved with some precision and supported by direct evi-

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

General damages, which involve a certain amount of speculation, are

generally 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 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 incurred anyway (the so-called “thin skull”

situation). Causation problems 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 particularly 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.

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

Compensation for Pers onal Injury113

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

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

ers 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 questions.3

Problems of causation are dealt with in Chapter 10.

2) Certainty

Personal injury 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 remainder

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 that 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 awarding of

probabilistic damages to compensate for lost chances. These principles

are discussed more fully in this chapter 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. This

means that he is obliged to take reasonable 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.).