Compensation for your losses
What’s Your claim worth?
The value of your claim will depend on a variety of factors unique to your claim including:
- who is at fault for your injuries
- the types of injuries you’ve suffered
- how long you are expected to suffer with your injuries
- how have your injuries affected your life
- how have your injuries effected your employment
Each claim is unique, but there are general guidelines and rules of law to provide reference for appropriate compensation for each individual claim.
In addition to the compensation discussed in this section, which are known as “tort” damages, and even if you were at fault for your injuries, you may be entitled to “no-fault benefits” from ICBC.
With motor vehicle accident caused injuries, you need to understand that ICBC has settlement guidelines for soft tissue injuries that are capped at $15,000 for damages for pain and suffering, that British Columbia courts are not bound by ICBC’s guidelines, and in fact, courts have awarded in access of $100,000 for more serious soft tissue injuries which result in chronic, or long term pain and limitations.
(Non-Pecuniary or General Damages)
Pain, Suffering and Loss of Enjoyment of Life or Non-pecuniary or general damages are designed to compensate an injured person for the loss of ability to fully enjoy life the same way he or she did before the injury.
Compensation for your losses Factors that are considered are:
- the type & severity of the injuries
- the extent of pain a person has endured and/or will continue to endure as a result of the injuries
- the impact of the injuries on the person’s
- the impact of the injuries on the person’s employment
- the impact of the injuries on the person’s recreational and day-to-day activities
- psychological well-being
- their personal relationships
There is no precise or mathematical means to calculate Non-pecuniary damages. Instead, courts have established a range of damages that vary with the type of injuries and the way in which the injuries have affected the particular claimant’s life.
Compensation for your losses
In 1979 the Supreme Court of Canada established an arbitrary limit of $100,000 that could be awarded for the most serious and devastating of injuries. The limit, or cap for non-pecuniary damages increases each year with inflation, and currently is about $325,000.
Loss of Income
An injured person is entitled to be compensated for loss of any income that would have been earned up until the date of settlement or trial, as well they are entitled to any income realistically expected to be lost in the future as a result of the injuries suffered. There have been cases where a person is entitled to compensation for loss of income even if he or she was not working or employed at the time of injury. Compensation for loss of income may include the value of any lost benefits. Even if a person may have lost the opportunity for a promotion or change to a higher paying job. If proven, this “loss of opportunity” is also recoverable.
Past Loss of Income
A person can also receive compensation for losses injured by the fault of another person and is entitled to recover any wages or salary lost if he or she cannot work due to the injuries suffered.
Past loss of income is calculated from the date of the loss until the conclusion of the claim by trial or settlement. If the person was injured in a motor vehicle accident, her or she is entitled to loss of income (after tax income), and the amount is further reduced by any disability benefits paid by ICBC under Part 7 (“no-fault benefits”).
Loss of Future Income or Loss of Earning Capacity
If a person can prove that his or her injuries will probably result in loss of income past the settlement or trial date, that person is entitled to compensation for loss of future income. Sometimes a person will be totally disabled for the remainder of his or her entire working life, and sometimes he or she might be only partially disabled, or disabled from only some type of work but capable of others. The Courts generally view a person’s ability to work as what’s referred to as a “capital asset,” the value of which varies depending on a person’s age, work history, education and other factors.
Sometimes a person’s future loss of income can be calculated fairly easily by referencing the wage or salary earned at the time of injury, but sometimes the loss cannot be so easily calculated.
When there is a “real and substantial possibility” that an injured person will lose income in the future, they are entitled to be compensated for that loss, even if a return to a full or part time occupation has been realized. This type of income loss is referred to a ‘loss of earning capacity’ and requires an assessment of the value a person’s “capital asset” has been diminished. This calculation is more arbitrary than mathematical and is considered on a case by case basis. Some factors the court will consider when assessing a loss of earning capacity are whether the injured person:
- less capable overall from earning income from all types of employment
- less marketable or attractive as an employee to potential employers
- lost the ability to take advantage of all job opportunities which might have been open to him or her had the injury not occurred
- less valuable to him or herself as a person capable of earning income in a competitive labor market
When preparing a case for settlement or trial it’s important to have an accurate medical prognosis which can help determine future income loss. In more complex cases, your Buckley & Company lawyer also has access to expert economists, vocational and work capacity professionals who can assist in developing and supporting your claim for loss of income.
Costs of Future Care
When a person is injured through the fault of another person they are entitled to receive money to fund items and assistance necessary to improve and maintain the injured person’s physical and mental health.
Future care costs may include such things as:
- rehabilitation support services
- chiropractic treatment
- massage therapy
- equipment and home alterations reasonably necessary to facilitate independence and mobility
- housekeeping services
- yard maintenance and handyman services
- psychological counselling
- occupational therapy
- nursing or in-home care services
- child care
- and educational or vocational support services
Before you can settle your claim, it’s important to have a long-term medical prognosis addressing the duration of accident related injuries and the associated limitations, plus the recommendations of qualified professionals for future care needs over the long term.
Where necessary, Buckley & Company can retain experts to provide recommendations for future care needs, and in more complex cases, the costs of the recommended items over the long term, or for life, if necessary.
Loss of Housekeeping Capacity
If a person injured through the fault of someone else and is less able to perform their usual tasks in and around their home, they are entitled to compensation for their reduced capacity to perform those chores.
The courts will recognize this loss by awarding a higher amount for non-pecuniary damages, and sometimes it will included the costs of future care or special damages.
However, loss of housekeeping capacity is sometimes considered a separate type of loss, and another specific amount will be awarded to compensate the injured person for their loss of ability to perform household tasks, even when the person has not actually spent money to hire someone else to do those tasks.
‘In Trust’ Claims for Assistance Provided by Family Members
When a family member such as a spouse or parent provides services to an injured relative, they may be entitled to compensation, regardless if the injured person did not pay for the services. The claim is made as part of the injured person’s claim for compensation “in trust” for the person who provides the services. Generally, the services will involve homemaking or nursing services above and beyond what would reasonably be expected from the family member who provided them. Typically, it must be demonstrated that the person who provided these “extraordinary services” experienced an economic loss (such as income loss) because of the time and effort spent providing the services, or that the person provided services for which the injured person would otherwise have incurred an expense, such as the hiring of a housekeeper, nurse or care attendant.
When you are injured and have benefited from the extraordinary services of family members, you should keep track of the time they spend in providing the services in order to support your claim for compensation on their behalf.
Special damages are reasonably incurred expenses through the fault of another person. When injured in an accident for which someone else is at fault, you have probably incurred out-of-pocket expenses for things such as:
- Repair or replacement of damaged property or clothing
- Ambulance fees
- Medical treatment
- Fees and/or user fees for therapies such as massage, chiropractic treatment, physiotherapy or acupuncture
- Prescription or over-the-counter medications
- Dental expenses
- Vehicle repair
- Car rental
- Insurance deductibles
- Travel expenses or mileage to medical appointments and therapies
- Housekeeping services
- Medical equipment or adaptive aids
- Expenses or lost income incurred by family members caring for an injured person
When the insurance company or your own extended benefits coverage does not cover these types of expenses, they are recoverable at the conclusion of your claim if they were reasonably incurred in relation to your accident and injuries.
Working closely with your doctor and other health providers to determine appropriate means of treatment and rehabilitation. Usually, if you’ve incurred the expense following a physician’s advice, you will be able to recover the expense. It is also a good idea to keep any receipts or invoices for out-of-pocket expenses.