3 Reasons the Pain and Suffering Cap Should Be Abolished

By Roger Foisy on January 4th, 2018

What Is Pain and Suffering in Terms of Personal Injury Law?

Pain and suffering is a type of damage that an injured party may claim during a lawsuit. It is considered a “non-pecuniary” damage, which is a loss that is not easily quantifiable in financial terms (as opposed to, for example, loss of wages).

Compensation for pain and suffering is intended to cover for the loss of enjoyment, the impact the injury has on the victim’s daily life, and the stress caused by the injury (both physical and emotional/psychological). As such, pain and suffering claims depend on each individual’s circumstances. Certain types of injuries will have a long-lasting effect on the rest of your life –  no monetary value can truly compensate for this.

Due to the challenge of putting a value on this type of loss, judges will base the award on damages awarded in previous similar cases with guidance from appeal courts like the Supreme Court of Canada.

What Is the Pain and Suffering Cap?

The Supreme Court of Canada set an upper limit, or “cap”, on pain and suffering damages in 1978, based on the case Andrews v. Grand & Toy Alberta Ltd. in which the 21-year-old Andrews was rendered quadriplegic in a motor vehicle accident.

Pain and suffering was capped at the amount Andrews received for this portion of the claim: $100,000 (which is approximately $369,000 in today’s dollars).

For personal injury victims who come before the court today, this amount often seems inconsequential in the face of the injuries they have suffered and the pain and loss they will struggle with for the rest of their lives. Many personal injury lawyers, such as myself, believe that this cap does not serve the best interests of the victims and instead does them an injustice.

Motor Vehicle Accidents: Pain and Suffering Threshold and Deductible

On top of the pain and suffering cap, motor vehicle accident (MVA) victims must contend with a “threshold” and a deductible.

  • Threshold:

If you’re injured in an MVA, in order to include pain and suffering in your case, you must first show that you sustained permanent serious impairment of an important physical, mental, or psychological function, or permanent serious disfigurement such as scarring.

  • Deductible:

If your case meets the threshold, you may be entitled to recover pain and suffering damages. However, in Ontario awards for pain and suffering in MVA cases are automatically reduced by a current deductible of $37,385.17 unless your pain and suffering award exceeds $124,616.21. Jurors are not informed about this deductible when making their Judgments.

The threshold and deductible requirements for MVAs are increasing year-over-year, further limiting a victim’s ability to receive compensation. These rules act in favour of the insurer or defendant. This is not surprising, given the extensive recent history of auto insurance coverage being slashed and restrictions placed MVA personal injury law cases.

Motor vehicle accident victims – and all personal injury victims – deserve better from the justice system.

3 Reasons to Abolish the Pain and Suffering Cap

The Ontario Trial Lawyers Association (OTLA) has published an article giving three excellent reasons to abolish the pain and suffering cap, which I will echo here:

  1. Other general damages, such as defamation, do not have a cap. This means victims can be awarded more for something like the loss of reputation than they can for loss of limb.
  2. As mentioned above, MVA victims face additional insurance deductibles. This creates an unfortunate situation where victims are stricken with both a damages cap and a large insurance deductible.
  3. Pain and suffering damages can be calculated in a more objective and quantifiable way. For example, in the United States juries are asked to consider the hourly value of the pain and suffering and calculate it over a lifetime, or use a multiple of the economic damages since losses to health, independence, and quality of life pale in comparison to economic losses.

Click here to read the full article from OTLA.

Recent Progress in Ending the Pain and Suffering Cap

Although the cap has not been abolished, we have recently seen a promising development that suggests the time of the pain and suffering cap may be coming to an end.

A recent case on April 20, 2017 McKnight v. Her Majesty the Queen et al., in Brantford, Ontario, included a $600,000 award for pain and suffering damages.

This is a step in the right direction, and a sign that the courts are recognizing that the pain and suffering cap is unjust to victims. While no amount of money can truly compensate injury victims for their pain and suffering over a lifetime, abolishing the pain and suffering cap would at least help to ease their financial burden.

If you have sustained a personal injury at another party’s fault, please contact me and my team of experienced personal injury lawyers for a free consultation.

Watch my video series about personal injury law.

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