Pain and Suffering Damages

by Shelagh McGregor

Pain and suffering damages are capped in Canada

One of the most common pain and suffering damages questions we are asked is “what is my case worth?” The amount of damages available to a birth injury plaintiff depends on:

  • the amount of the cost of care, which is determined by a cost of care expert during the course of the lawsuit;
  • the child’s and parents’ loss of income, which is also dependent on an expert opinion; and
  • the pain and suffering damages, which is a lot easier to determine.

What Are Pain and Suffering Damages?

Pain and suffering damages are also called “non-pecuniary general damages,” because they are not based on an economic loss. They are meant to compensate for pain, loss of life expectancy and loss of enjoyment of life.

How Much Are My Pain and Suffering Damages?

Many of our clients are familiar with the million-dollar awards for pain and suffering damages in the United States and wonder if they would be entitled to an amount in that range. While many birth injury lawsuits are worth millions of dollars, this is mostly due to the cost of care and loss of income damages, and not due to the pain and suffering damages to which their child would be entitled.

In 1978, the Supreme Court of Canada, in a case called Andrews v. Grand & Toy Alberta, [1978] 2 S.C.R. 229, determined that there should be a “cap” of $100,000 on pain and suffering damages.

Inflation and Pain and Suffering Damages

When inflation is applied to this amount, it is now in the range of $360,000-$375,000, depending on the inflation rate of the province in which you live. This decision was made to prevent inflated damages awards and avoid a crisis, like what was happening in the United States. The Supreme Court decided that, while in theory a person’s pain and suffering damages could be more than the cap, the cap would apply to all personal injury cases.

In general, if your child has a significant hypoxic-ischemic injury or other brain injury, is wheelchair bound, has cerebral palsy, or is catastrophically injured in another way due to another’s negligence, your child will be entitled to the maximum amount of pain and suffering damages.

If you have any questions about the amount to which your family may be entitled through a lawsuit for your child’s birth injury, your local BILA lawyer would be happy to discuss that with you.

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