Awards for damages and settlements are based on what other victims have received in the past for similar injuries. Normally, there will be a range of damages that a lawyer can determine from reading case decisions involving similar injuries. Your specific facts will determine where you fit in the range.
In Ontario, there is a cap on damages that was set by the Supreme Court of Canada in 1970. The ceiling on damages goes up with inflation. Currently, the most you can be awarded in Ontario for pain and suffering is in the range between $325k and $350k. Damages at the cap level are generally reserved for the most serious cases of catastrophic injury.
For car accident cases, there is also a financial threshold your case must surpass for you to receive damages for pain and suffering. The Insurance Act and its regulations specify the amount of the deductible.
If the compensation for pain and suffering is less than one hundred thousand, there is a deductible of thirty thousand. That means that if your damages for pain and suffering are $70,000, the insurance company only has to pay $40,000. If your damages are $25,000, you receive nothing for pain and suffering.
The personal injury lawyers at Auger Hollingsworth strongly object to this deductible which is the harshest in North America and which has been referred to by at least one judge as a "tax on pain". However, this is the current state of the law.
We urge our clients to contact their Member of Provincial Parliament to voice concern about this issue. One of our personal injury lawyers met with her own M.P.P. Jim Watson (Ottawa West- Nepean) in November 2007 to discuss this issue.
Because of the deductible, you will want to give as much evidence as you can about the effect of the injury on your daily living.
This means that after your accident you should meticulously document appointments attended, vacations cancelled, bad nights sleep, days when you are feeling particularly bad, missed family or other special events.
You should ask family members to document, from time to time if not daily, their observations of your condition over time.
In some cases, the evidence from the diary you keep could push a case over the $100,000 mark, which results in a $30,000 gain to you.
