Heads of Damages in Personal Injury Actions

The general principle behind awarding damages in a personal injury action is that the plaintiff is to be restored the position that he or she would have been in had the injury not occurred. This means that the plaintiff is to be financially compensated in a manner that will allow him or her to live his or her life in a manner as close to possible as it would have been had the injury not occurred.

Given that injuries may impact several areas of a plaintiff’s life, assessing damages in a personal injury matter can be complex. There are several heads of damages that may be claimed, and certain heads of damages may require expert evidence.

Some of the more common heads of damages that may be claimed are summarized below.

1. Pain, Suffering, and the Loss of Enjoyment of Life.
General damages, or non-pecuniary damages, compensate the plaintiff for the pain and suffering that he or she experiences as a result of his or her injury. This is meant to compensate the plaintiff for the physical, emotional, and psychological impact that the injury has on his or her life.

2. Loss of income
This head of damage compensates the plaintiff for income lost as a result of his or her injuries. Assessing loss of income is often a complex endeavor. For example, it is difficult to arrive at a precise value for loss of income if the plaintiff operates a business, since there are many factors that affect how much income the plaintiff earns from year to year. Economic experts are often retained to assist with calculating loss of income.

3. Loss of Earning Capacity
Loss of earning capacity is similar to loss of income but refers to future losses. Loss of income refers to past losses.

4. Cost of Care
Cost of care refers to the claim for the recovery of money spent to pay for care items such as medical equipment, prescriptions, physiotherapy, and attendant care.

5. Future Cost of Care
Future cost of care is a determination of the amount of money that is required to care for plaintiff in the future. This includes future expenses for things such as medications, physiotherapy, and attendant care. The court may award a one-time lump sum payment or an annuity, where the plaintiff receives monthly payments.

6. Loss of Valuable Services
A plaintiff is entitled to claim the loss of the ability to perform services around the home. This is often referred to as loss of housekeeping and compensates the plaintiff for his or her reduced ability to perform household chores such as cooking, cleaning, and yard work. A plaintiff can claim under this head of damage even if they do not actually incur a cost as a result of not being able to perform household tasks.

7. Out-of-Pocket Expenses
A plaintiff is entitled to recover any money that was spent that they would not have been spent had they had not suffered an injury. In addition to claiming for past cost of care, this allows the plaintiff to claim for mileage for medical appointments, parking, meals, hotels, and other similar items. We encourage our clients to keep receipts of all expenses that may be related to their injuries.

8. In-Trust Claims
In situations where the plaintiff is unable to care for himself or herself, the plaintiff will often receive care and services from others, such as family members. These individuals are rarely paid for the care and services they provide. However, the plaintiff is able to advance a claim for compensation based on the value of the care they received, even though no expense was incurred. This is referred to as an in – trust claim.

9. Loss of an Interdependent Relationship
Some courts have recognized that there is a financial benefit to being in a committed relationship or marriage, especially where both partners earn an income. The financial benefit results from the fact that committed partners are able to pool their income and share expenses such as mortgage, insurance, and vehicle payments.
In some instances, where a plaintiff can establish that because of their injuries they are less likely to enter into a committed relationship, that plaintiff can claim for the financial loss they have suffered or will suffer because of the loss of ability to enter a committed relationship.

10. Gross-Up
The plaintiff does not have to pay tax on any portion of a medical malpractice settlement or judgement. However, an individual is required to pay tax on any interest earned as a result of investing the amounts received in the settlement or judgement. Awards for future cost of care are calculated on the basis of present value, which means that the court takes into account that the plaintiff will earn interest on the award. Gross up is an amount awarded to compensate the plaintiff for tax that they would not be required to pay on an award for the future cost of care to ensure that the plaintiff does not experience a shortfall, which would result in the plaintiff not being able to afford the care that they require.

11. Aggravated, punitive, exemplary damages
In some cases, additional damages (referred to as aggravated or punitive damages) may be available. Aggravated damages are awarded to compensate the plaintiff for mental distress or injured feelings caused by the manner of, or motives behind, a defendant’s misconduct. Punitive damages, also known as exemplary damages, or non-compensatory damages, are awarded in excess of the plaintiff’s loss with the intent to punish the defendant.

Aggravated, punitive, and exemplary damages are extremely rare in medical malpractice cases. They are not generally available in cases of negligence. However there are instances where the courts have awarded these types of damages such as where physicians have attempted to hide an error through altering their medical charts or by recruiting other medical professionals to keep quiet about the error.

12. Investment management fees
If the award at the settlement or trial is large enough that it needs to be invested it is possible in some circumstances to get compensation for the cost to hire a financial advisor to manage the funds.

13. Housing
If the injury suffered by the plaintiff affects their mobility such that renovations need to be made to their residence to accommodate their disability, the cost of such renovations is recoverable.

14. Adaptive vehicles
Adaptive vehicles are often required to transport plaintiffs with a disability. The cost of either adapting the vehicle (usually a van) or buying an adaptive vehicle can be included in the plaintiff’s claim.

15. Loss of pension benefits
An injury suffered by the plaintiff may affect their ability to work, which, in turn, may affect their ability to build a pension. In some circumstances, it is possible to advance a claim for loss of pension benefits.

If you are considering a personal injury action and want to learn more, contact one of our personal injury lawyers here.

By Ian Miller