Personal injury lawyers hear it all of the time. Potential clients come to them after they have suffered an injury, and they feel that their case is worth hundreds of thousands of dollars. Millions, even. That is one of the more challenging aspects of personal injury law: explaining to this person that although their pain and suffering can be completely empathized with, there actually is a legal financial cap.
This cap was established in Canada in 1978, through three cases known today as The Trilogy. “The Trilogy” is a reference to three Supreme Court of Canada decisions that all included catastrophically injured youths. These cases determined the upper limit for general damages, otherwise known as non-pecuniary damages. These damages refer to a person’s pain and suffering, and are determined by the court.
General damages are different from pecuniary damages. Pecuniary damages encompass the cost of future care, and prospective loss of earnings. These damages, therefore, are provable and can be calculated relatively precisely with the help of evidence and experts.
In 1978, Andrews v Grand & Toy Alberta Ltd, Arnold v Teno, and Thornton v Prince George School District No. 57, also known as The Trilogy, determined that the absolute upper limit that a person can be awarded for general damages is $100,000. Today, that is approximately $375,000 with inflation. Pecuniary damages are not subject to a cap.
Pain and Suffering
Some people hear about cases such as these and think, “See, that kind of money really does get awarded.” However, there are very important factors that contributed to such huge general damages awards. One key factor is that all three cases were children.
The court looks at the pain and suffering experienced by a child with so much life left to live, and assesses their pain and suffering after becoming quadriplegic (as in Andrews v Grand & Toy Alberta Ltd. and Thornton v Prince George School District No. 57) for the remainder of their lives. The court assesses this pain and suffering to be greater than it would be had the same accident happened to an adult.
The news media does not help with people’s misconceptions about settlements either. People see astronomical figures in headlines and think that must be how these lawsuits go. However, what everyone should remember when considering a personal injury lawsuit is that Canada works under the law of precedents.
Every case that comes before the court will be compared to other cases with similar facts in order to determine how much was awarded previously. So yes, technically the cap is $375,000, but that is the absolute maximum possible to be awarded for general damages. It ultimately is up to the specifics of each case as to how much it will settle for.