A personal injury claim usually consists of both pecuniary (financial) and non-pecuniary damages. In New Brunswick, when assessing personal injury claims, Courts make a distinction between pecuniary and non-pecuniary damages. It is helpful to understand the difference between these types of damages to understand how the categories of damages will be assessed. Courts often apply different legal principles when assessing pecuniary and non-pecuniary damages.
Pecuniary damages are those that can be itemized or measured in financial terms. Examples of pecuniary damages include special damages, property damage, loss of income, and future care costs. Sometimes, receipts or proof of expenses are required to support these claims. It is important to consult a lawyer early on if you may have a personal injury claim. A personal injury lawyer can advise on what expenses you should be tracking and what documentation you should collect to support your claim.
For more details on the categories of damages, please see our blog post here.
The Role of Expert Evidence in Assessing Pecuniary Damages
In contrast with some other Canadian jurisdictions, New Brunswick Courts place a high value on expert opinions quantifying certain pecuniary damages. In some cases, an expert opinion is necessary for support. A vocational expert can quantify past loss of income and future diminution of earning capacity. A future cost of care expert can quantify the types of support, medical expenses, aids, and treatment, and the price of this care. In some cases, retaining an actuary for a claim may also be appropriate. An actuary analyzes probabilities and contingencies. An actuary takes the numbers provided by other experts and provides a sum analysis that considers statistics like life expectancy and the likelihood of other intervening health issues.
In New Brunswick, Courts have also moved from assessing loss of valuable services damages as a lump sum to a quantified approach. A decision from the Court of Appeal now requires the Plaintiffs to quantify the loss of beneficial services by determining the types of tasks that the Plaintiff can no longer do, the time previously required for those tasks, and the replacement value of those tasks. It is sometimes appropriate to have a loss of valuable services expert quantify this category of damages.
In New Brunswick, non-pecuniary damages are more commonly referred to as general damages. This type of damage compensates individuals for pain, suffering, and loss of amenities. This category of damages aims to compensate the injured party for the less tangible losses caused by the injury.
How Non-Pecuniary Damages Are Assessed
When assessing this type of damage, Courts will consider all the ways the life of the injured party has been impacted. For example, the recreational and social activities that the injured person can no longer do; any emotional distress caused by the injuries; the impact the injuries have had on the person’s romantic relationships, family relationships, and friendships; the pain and suffering caused by the injuries; and the decreased quality of life caused by the injuries. It is recognized that monetary compensation cannot provide true restitution for these losses but can be used to compensate the injured person, even if imperfectly, for what has been lost.
Non-pecuniary or general damages are often more difficult to assess because of their subjective nature. It is impossible to exactly quantify the impacts an injury has on someone’s life. It is not useful to have an expert speak to the assessment of general damages. Courts assess this type of damage by determining the severity of the injuries and the impact of the injuries and comparing this information to other case laws or precedents in New Brunswick. The Court looks at past decisions where the Plaintiff had similar injuries, limitations, and impacts from the injuries, and what was awarded by the Courts in those decisions,
Although there is no easy quantification of these types of damages, the evidence used to support non-pecuniary or general damages is still important. It is crucial to ensure there is solid medical evidence supporting the severity of the injuries and the limitations that result from the injuries. In some cases, it may be appropriate to have a functional capacity evaluation measure the extent of the limitations or disability. It is also crucial for your lawyer to get regular updates on the impact of the injuries. This subjective chronology can become important in assessing general damages. Your lawyer may also wish to talk to some of the people close to you to ensure that they have a robust picture of the impacts of the injuries.
Legal Rules in Assessing General Damages
There are also some unique legal rules that apply to general damages.
Upper limit on general damages
The Supreme Court of Canada initially put an upper limit, $100,000, on the amount that can be claimed for the category of general damages. This amount is adjusted for inflation and today amounts to approximately $400,000. The upper limit amount is only to be applied in situations where there are catastrophic injuries. General damages for most claims fall somewhere below the upper limit.
Adjusting for inflation
When using past case law or precedents to assess general damages, the awards in the case law can be adjusted for inflation. This means that the reported amounts should be adjusted by using Canadian inflation rates when looking at past case law and awards of general damages. For example, if a reported case from 1990 assessed general damages at $60,000, general damages today, after adjusting for inflation, would be $119,698.11. Therefore, if a Court awarded general damages in 1990 in the amount of $60,000 for similar injuries, limitations, and impacts from the injuries, it can be argued that a similar injured party today would be entitled to approximately $120,000 for general damages.
The ‘cap’ on general damages
For claims arising from a car accident, Injury Regulation, N.B. Reg. 2003-20 under the Insurance Act may apply if the injury meets the test for a minor injury.
For more information on the ‘cap’ on minor injuries, see our blog post here.
At a rate of five percent, interest can be applied to general damages in some cases. Interest can not be applied to general damages for car accident claims. Interest can be applied to general damages in other personal injury claims, for example, slip-and-fall claims.
If you have a personal injury claim, your claim will likely include both pecuniary and non-pecuniary damages. Depending on the type of claim and the injuries, different legal rules may apply to the assessment of damages. For both types of damages, the preservation and collection of solid evidence are crucial to the claim’s success. In some cases, it may be appropriate to retain experts to provide an opinion on quantifying non-pecuniary damages. The timing and scope for retaining these experts are usually very strategic. Retaining a personal injury lawyer with strong experience in assessing and supporting personal injury claims is essential. It is also important to involve a lawyer at the early stages of your claim to ensure it is properly substantiated.