Caps to Pain and Suffering Awards Should be Eliminated for the Good of Injured People

June 29, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Most Ontarians are not aware of the limits on their car insurance benefits. I’ve written extensively on the regular changes to the benefit limits, which consistently trend downward. Successive governments have been lobbied heavily by the incredibly profitable car insurers to justify some of the highest premiums in Canada with some of the lowest benefit rates.

Pain and suffering claims also have limits which were set by the Supreme Court of Canada ruling in Andrews v. Grand & Toy Alberta Ltd in 1978. Mr. Andrews was only 21 when he became a quadriplegic after being struck in a car accident. The Court set the upper limit on pain and suffering in Canada at $100,000. There is call for that cap to be revisited and abolished.

In their decision, the Court focussed on the ‘paramountcy’ of the damages for future care and medical treatment, not pain and suffering which the Court believed intangible and difficult to calculate. The Court was also concerned with ‘widely extravagant’ claims being made and focussed on the need for predictable damages.

Forty years on, it is time to revisit this cap. The world is a much different place than it was in 1978, and there are good reasons to abolish the cap.

1. No other general damage claims (defamation for example) have a cap. In essence, you can be awarded a greater amount for losing your reputation than losing your life.
2. In the case of car accidents there are additional insurance deductibles on pain and suffering awards.  Juries are not allowed to be told about the deductibles, and therefore don’t factor the amount into the claims. In the case of a car accident the victim may receive the capped benefit, and then have the amount reduce by the deductible amount, being victimized three times (the accident itself, the cap, the deductible).
3. The method of calculation of pain and suffering has advanced since 1978. We can now use an hourly rate to value the loss over a lifetime. The American’s do it regularly. The calculation can be a logical one.

The awards should be changed, along with the restrictions on making juries fully aware of the insurance regime and the penalties it makes on those injured in car accidents.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.