When you are injured through the fault of others, you have a fundamental right to compensation. The law seeks to restore you, as much as it is humanly possible to the status you enjoyed before you were injured.
Lawyers, judges and insurance adjusters use certain terms to describe the different types of compensation available. This article focuses on how those terms are used in the Province of British Columbia Canada.
In some Canadian Provinces (including BC) and in many American States, laws (sometimes called ‘No Fault Legislation’) have taken away or limited your right to recover your losses and expenses from the people, companies and governments who injured you. All the damages discussed in this article may not be available in the jurisdiction in which you live.
There are strict time limits for bringing most claims. Some expire within days or weeks of an incident. If you miss a limitation, you may be forever barred from recovering compensation. So never hesitate when it comes to finding out about and enforcing your legal rights.
This information is for educational purposes only. It is not legal advice. Before proceeding, click here to read our Disclaimer. If you or a loved one have been seriously injured, consider discussing your case with an experienced personal injury attorney now.
GENERAL NON-PECUNIARY DAMAGES
These are often called compensation for “pain and suffering and loss of enjoyment of life” or “non-pecuniary damages”.
They compensate you for the disruption of your life, your family and your happiness caused by the injuries. They can include compensation for emotional distress, anguish and loss of consortium.
You don’t need any receipts to get this compensation. But a calendar or diary can be invaluable in proving your non-pecuniary damages.
TIP: The Supreme Court of Canada has set what it calls the ‘rough upper limit’ for non-pecuniary damages – pain and suffering – in catastrophic cases involving quadriplegia and serious brain damage. As of December, 1998, the upper limit was approximately $260,000. If your injuries are less serious you may get proportionately less.
DAMAGES FOR PAST LOSS OF INCOME
This is compensation for the wages or self-employed income you lost by not being able to work from the date of the accident until your return to work or the trial or settlement.
You need documents, especially receipts, pay stubs, tax returns, reference letters and occasionally financial statements to support your claim.
If you are self-employed or unemployed at the time of the accident or lost a promotion while you were disabled, testimonials from witnesses can help prove past wage loss which is not obvious from your pay stubs and tax returns.
In many cases, you may be entitled to full compensation based on your gross income without deduction for income tax, unemployment insurance premiums, or other payroll deductions. Be wary of insurance adjusters who try to calculate your loss based on your net pay.
Many ‘collateral benefits’ like employment insurance, disability benefits and Canada Pension payments are also not deductible from most claims. This is a very complicated area of the law. and you should not attempt this without professional help.
TIP : If your injuries are not permanent, wait until you are completely healed before agreeing to settle your claim. Otherwise, a flare-up could put you off work again with no right to compensation.
DAMAGES FOR FUTURE LOSS OF INCOME AND EARNING CAPACITY
Permanent injuries may continue to interfere with your ability to work and earn income for the rest of your working life. You are entitled to compensation for that loss, even if you returned to work before the settlement and your lingering injuries seem minor.
Opportunities to pursue certain career choices or promotions may be delayed or compromised by any disability. It is not necessary to prove that you are certain to lose income or opportunity, only that it is ‘reasonably possible.’
TIP: If your injuries have not fully healed, you may have a future wage loss claim. A report from an expert economist or actuary is essential to help you prove it. The economist will first project your losses through your entire working career and then calculate the ‘present value’ of the loss.
COST OF FUTURE CARE
This includes all expenses you will incur after the date of trial or settlement which are medically justified.
In serious cases this can include making a house, vehicle and workplace fully accessible. It can also include all the nursing care necessary to allow independent living, no matter how serious your disability.
Future care may also include the cost of medications, chiropractic, physiotherapy, counseling, home and workplace modifications, retraining, and any other expenses which will help you get on with your life.
TIP: A report from a rehabilitation expert is essential to proving a claim for future care. Your economist will interpret the report and calculate the ‘present value’ of your future care costs.
LOSS OF HOUSEKEEPING CAPACITY
This is compensation for the loss of your ability to maintain your home to the standard you were accustomed to before the accident.
Compensation for loss of housekeeping capacity has only recently been recognized in many jurisdictions including British Columbia. This compensation recognizes the economic value of thousands of hours of unpaid domestic work done each year in Canadian homes largely by women.
A person who has lost the capacity to keep and maintain their home has suffered a loss just as surely as someone who has lost the capacity to work at paid employment.
TIP: Most insurance companies will resist this claim vigorously. Adjusters will not offer compensation for loss of housekeeping capacity. If you have lost the ability to do your normal household tasks and to maintain your home, consider getting legal advice.
SERVICES PROVIDED BY HOUSEHOLD MEMBERS
This includes household, nursing and rehabilitative services provided by family members while you are disabled.
Compensation is available where the services go beyond the normal things people do for each other every day out of love and affection.
TIP: A family member who quits a high-paying job to nurse an injured spouse, can not recover lost salary. Compensation is limited to what the service would have cost on the open market, in this case what it would have cost to hire a nurse to care for your spouse.
These include all extra out-of-pocket expenses you incurred because of your injuries.
You must keep all receipts to be fairly and adequately compensated. Most lawyers will keep them for you if you bring them in periodically.
Special Damages include compensation for prescription and over-the-counter drugs, damaged clothes, broken glasses, personal property destroyed in the accident, car rentals, homemakers, dental bills, babysitters, mileage and a host of other expenses
PUNITIVE, EXEMPLARY AND AGGRAVATED DAMAGES
These types of damages are awarded in cases where the conduct of the defendants was extreme and shocking.
Aggravated damages compensate you for the added impact the defendants conduct had on you because of its flagrant, embarassing or shameful nature.
Punitive and exemplary damages are directed not at compensating you but rather punishing the defendant for particularly blameworthy behaviour. They are meant to deter the defendant and others from indulging in similar acts again.
If you have been the victim of an intentional act such as a sexual assault, battery, or false imprisonment you are probably entitled to these types of damages.
If you have been the victim of negligence such as in most motor vehicle or medical cases, these damages are much less likely to be awarded.
TIP : Objectivity is hard to maintain when you have been the victim of this kind of conduct. If you feel the circumstances of your case justify punitive, aggravated or exemplary damages, seek legal advice. Experienced personal injury attorneys are trained to be objective.
NO FAULT/DISABILITY BENEFITS
Even if you are injured and at fault, in many jurisdictions you may be entitled to no fault benefits, disability coverage through work or personal insurance.
In BC, most people injured in auto accidents are entitled to Part VII benefits regardless of fault through the Insurance Corporation of British Columbia (ICBC).
These benefits can include wage loss, disability and homemaker benefits, medical treatments, rehabilitation and retraining.
They can also include funeral expenses, death benefits and certain other specified benefits.
Most coverage has fixed limits. ICBC will only pay a lifetime maximum of $150,000 per person for medical expenses if you were at fault in an auto accident.
If you have a question or wish to find out how we can work with you to recover your losses and achieve fair compensation for your injuries, click here to fill out our free Personal Injury Evaluator or press here to contact us by e-mail. We can help.