Compensation for Personal Injury

AuthorJamie Cassels
The fundamental principle of persona l injury compensation is restitutio
in integrum: restorat ion 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 ha s been suffered. But by offering a full indem nity
for all econom ic losses, and ad ditional compen sation for non-economic
losses to provide a measure of solace, t he law strives to achieve this
goal as nearly as possible. In Rat ych v Bloomer, McLachlin J stated:
The award is justif‌ied , not because it is appropriate to puni sh the de-
fendant or enrich the pl aintiff, but becaus e it will serve the pu rpose
or function of restor ing the plaintif f as nearly as possi ble to his pre-
accident state or alternat ively, where this cannot be done, providing
substitutes for what he ha s lost.1
The restoration measure of damages for persona l injury may be
compared with reliance d amages in contract, insofar as the goal of both
is to restore the plaintif f to the position as though the encounter with
the defendant had not occurred.
Compensat ion for Personal Injury 127
In three case s decided in 1978 (“the trilogy”),2 each involving cat-
astrophically injured youths, the Supreme Court of Can ada set out
the law regarding pers onal injury compensation with some precision.
Damages are awarded for both past and future losses, and in both of
these categories, dam ages are further divided into pecuniary 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 earni ng 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 losse s, including
pain and suffering, loss of amenities, loss of enjoyment of life, and loss
of expectation of life. Non-pecuniar y damages may also include ag-
gravated damages if the injury was caused m aliciously (see Chapter 6).
Damages are also refer red to as “special” and “general.” Special
damage s (or “out-of-pocket” losses) are those losses and expense s (such
as income loss, medical treat ment) 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 ar ise in the future.
General damages, which involve a certain amount of speculation, are
generally proved through the use of exper t opinion evidence.
This section introduces and encaps ulates 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 t he onus of proving that the defendant’s wrong was,
in fact, the cause of the injur y. Causation problems typically arise
when the plaintiff ’s injury is unusual for the ty pe of accident that oc-
curred, or where there is evidence that the injury is one that the plain-
tiff was predi sposed to or might have incurred any way (the so-called
“thin skull” situation). Causation problems are also common when the
plaintiff ’s injury is not the result of a traum atic accident but is rather a
“multi-factoral” illness or dise ase. Such problems arise in a part icularly
2 Andrews v Grand & Toy Alberta Ltd, [1978] 2 SCR 229 [Andrews]; Thor nton v
Prince George School Distr ict No 57, [1978] 2 SCR 267 [Thornton]; Arnold v Teno,
[1978] 2 SCR 287 [Ten o].
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 smoking c aused their cancer or respirator y
illness. After experimenting with a relaxed onus of proof in this area,
and the awarding of “probabilist ic damages,” Anglo-Canadian court s
have returned to the trad itional requirement that the plaintiff must
prove the cause of the harm on the balance of probabilities, though
courts will t ake a robust and pragmatic approach to these quest ions.3
Problems of causation are dealt with in Chapter 10.
2) Certainty
Personal injury compensation is often l argely about guessing the un-
knowable and pondering the imponderable. The questions will fre-
quently be as follows: What would have happened in the plainti ff’s
life but for the accident? And what will happen during the rem ainder
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 t he face of
uncertainty. Perhaps the most important is the acceptance by courts
of probabilistic evidence regarding f uture events, and the awarding of
probabilistic damages to compen sate for lost chances. These principles
are discussed more fully in this chapter and in Chapter 10.
3) Remoteness
The plaintiff may recover only dam ages that are not too remote. In
personal injury law, the physical and psychosoci al consequences of
an injury are often far-reaching. Several cases, for example, involve
personal injury pla intiffs who, as a possible result of the tr auma 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 i n Chapter 11.
3 Snell v Farrell, [1990] 2 SCR 311; Athey v Leonat i, [1996] 3 SCR 458; Resurf‌ice
Corp v Hanke (2007), 45 CCLT (3d) 1 (SCC); Clements v Clemen ts, [2012] 2 SCR
181; Ediger v Johnston, 2 013 SCC 18.

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