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So you think you're going to be a millionaire - (and other fairy tales).

The Canadian v. US Experience with Personal Injury Claims

The purpose of awarding damages in a personal injury action is to return the injured person, the plaintiff, to the position he or she was in before the injury, as far as money is able to do. Thus, personal injury damages are compensatory. However, many clients have inflated expectations of the financial awards or settlements they can obtain in a personal injury lawsuit. This may be attributable to observation of high profile cases in the United States. Many of us are aware of the suit in which the plaintiff was burned by hot coffee in a fast food chain and obtained a seven figure damages award.

Many are not aware, though, that Canadian courts have purposefully and consistently taken a far more conservative approach to assessing personal injury damages. For example, a plaintiff may recover a settlement or award in the range of $4,000 to $30,000 for a whiplash injury, depending on the severity, duration, and prognosis. When large personal injury awards or settlements are made in Alberta, the bulk of the award tends to be for past and future loss of income and cost of future care, not for the pain and suffering from the injury. A series of 1978 Supreme Court of Canada decisions set a cap for general damages for pain and suffering in the amount of $100,000 (adjustable for inflation), barring exceptional circumstances.

General Damages for Pain and Suffering

The pain and suffering component of personal injury damages, including loss of enjoyment of life and amenities, compensates the plaintiff for the subjective pain, discomfort and inconvenience the injuries have caused. The claim should be supported with notes and charts from the plaintiff's health care providers. As well, one or more reports from health care givers will be valuable. The defendant, who may be represented by an insurance company, may wish to hire another doctor to perform an independent medical examination to assess the plaintiff's injuries. Damages for pain and suffering also compensate for the impact of the injuries on other aspects of the plaintiff's life, including hobbies, sporting activities, and a sexual relationship. The latter category of loss is not available if a claim is instead made for loss of consortium (discussed below).

Past Loss of Income

A plaintiff can advance a claim for any resulting income losses incurred prior to trial or settlement. Medical reports outlining the plaintiff's condition and payroll or employment records setting out the plaintiff's absence from work will be required as evidence. If the injuries arose in an automobile accident, the plaintiff first will have to submit a claim to his or her own insurance company for Section B benefits. There are limits both on the amounts the insurance policy will pay and on the time frame for reimbursement. However, the plaintiff can add any amounts not reimbursed through the Section B portion of the automobile policy to the personal injury claim against the defendant. If the plaintiff's employer compensates the plaintiff for any work absences attributable to the injuries, the employer may have a subrogated claim for the amounts paid. That is, the plaintiff will advance a claim on behalf of the employer for the amounts the employer is out of pocket.

Future Loss of Income

A plaintiff may advance a claim for future loss of income. This is based on an estimate of the income the plaintiff likely will lose because of missed work or the inability to work in the future. Regard will be had to the plaintiff's doctors' medical reports and the plaintiff's health care givers' notes and charts. The plaintiff may need to obtain the evidence of an economist to calculate and substantiate this claim.

Loss of Earning Capacity

The loss of competitive position or loss of advantage is an economic loss arising from the detrimental effects of a plaintiff's injuries on his or her income earning capacity. In other words, this claim is made when a plaintiff is limited in his or her options within that individual's chosen field directly as a result of the injuries.

Past Loss of Housekeeping

A plaintiff can include a claim for past loss of housekeeping if the injuries rendered the plaintiff unable to perform domestic duties at all or to the same standard as before. The monetary value of this claim is often measured by what it would cost to hire domestic assistance to replace the work formerly done. For example, a plaintiff might recover damages equal to $12 an hour, at 10 hours per week for the number of weeks between the injury and the trial. Examples of housekeeping duties included in this claim are vacuuming, gardening, grocery shopping, laundry, ironing, cleaning bathrooms, washing walls, dusting, making meals, general clean up, shoveling snow and mowing the lawn. Only the injured person has the claim, even if friends or family members provided unpaid assistance. If the plaintiff incurred any expenses in hiring a housekeeper, those amounts would be added to the plaintiff's claim for special damages (discussed below). In quantifying housekeeping claims, courts sometimes refer to the amount a general domestic worker would charge to perform the same work. Often a home economist expert will provide evidence about the range of rates for home care, housekeeping agencies, and individual service assistance. A home economist who has interviewed the plaintiff and assessed his or her home and daily household duties also can provide useful evidence.

Future Loss of Housekeeping Capacity

A claim for future loss of housekeeping capacity compensates the plaintiff for the housekeeping duties he or she is no longer able to perform or perform to the same level as before. Medical documentation is crucial, as the court will be attempting to predict what the plaintiff will be able to do and will not be able to do in the future. The claim can be quantified by estimating the number of hours the plaintiff will be unable to devote to housekeeping duties directly because of the injuries, multiplied by an acceptable hourly rate for domestic assistance, multiplied by the length of time the plaintiff is predicted to require housekeeping assistance. Alternatively the courts may instead find it appropriate to treat this claim as a component of general damages for pain and suffering and adjust that award accordingly.

Loss of Consortium

This is a claim advanced by the injured person's spouse, who must also be a named plaintiff in the action. The claim is for loss of the society and comfort of the injured person as a result of the injuries. The evidence of the spouse will have to address how their relationship, including their sexual relationship, was compromised by the injuries. Because the claim originates in legislation governing married people, it is only available to a person actually married to an injured person; a common law arrangement will not support the claim.

Cost of Future Care

The plaintiff can advance a claim for any costs that will be incurred in the future to assist performance of daily activities. This claim may cover such things as future chiropractic treatments, massage treatments, acupuncture therapy, medical devices, medications and the like. In addition to medical documentation, the evidence of an occupational therapist will often be required to support a cost of future care claim.

Special Damages or Damages for Out of Pocket Expenses

Special damages refer to all out of pocket expenses incurred because of the injuries. Receipts, though not crucial, are of assistance. The claim can cover damage to or loss of clothing and jewelry that occurred when the plaintiff became injured. The claim can also cover the cost of any medication, chiropractic treatments, massage treatments, acupuncture therapy, physiotherapy and the like, that are not reimbursed by the plaintiff's medical benefits insurer or automobile insurer in Section B benefits (in the case of a motor vehicle accident). Other items of special damages can include mileage and parking for travel to health care providers.

Interest

Interest is calculated on damages awarded for pain and suffering, special damages, and all past losses. Interest is not awarded on any future claims. The rate of interest used is set out in an statute called the Judgment Interest Act. Damages for pain and suffering are calculated at 4 percent. The interest rate for all other damage awards is set by regulation and varies from year to year. For example, the rates for 1998, 1999 and 2000 were 3.5 percent, 4 percent and 6.25 percent, respectively. Interest is not calculated on taxable costs.

Taxable Costs

At the end of a lawsuit, the unsuccessful party generally pays the successful party taxable costs. The purpose of taxable costs is to offer some reward to the successful party, to motivate both parties to act reasonably in conducting the suit. They are meant to partially reimburse the successful party for the expense of advancing or defending a claim, but they are not meant to be so high as to discourage parties from pursuing or defending their interests. Taxable costs can be subject to negotiation if the matter is settled.

Taxable costs include fees and disbursements for the court case. They have nothing to do with government taxes ... Fees for each step in a lawsuit are set out in the Alberta Rules of Court. The amount that can be claimed for each step depends on the amount of the ultimate settlement or trial award. However, the taxable fees will represent only a portion of what a successful plaintiff actually paid in legal fees. Many of the disbursements incurred on the plaintiff's behalf are fully recoverable as taxable disbursements. These include costs of medical reports, notes and charts, courier costs and postage.

Conclusion

By having knowledge of the nature and quantum of claims that can be advanced in Alberta, a plaintiff will have a more positive litigation experience and can enter settlement negotiations with more realistic expectations.
COPYRIGHT 2001 Legal Resource Centre of Alberta Ltd.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2001 Gale, Cengage Learning. All rights reserved.

Article Details
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Author:Stratton, Barbara J.; Nayyer, Kim P.
Publication:LawNow
Date:Apr 1, 2001
Words:1648
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