You have no doubt seen or read news reports coming out of the United States – perhaps on CNN, FOX, or MSNBC – explaining the plight of a poor individual who ate a defective cheeseburger and recovered an inordinate sum as compensation for his or her pain and suffering. It is highly doubtful that you have seen or read similar news reports up here in the great white North. Why, you might ask? Please hop in my time machine… or simply sit through a very brief history lesson (this is a blog post after all and brevity is important).
The year was 1978 and our Supreme Court of Canada was faced with a trilogy of cases. (Sometimes you may even hear your lawyer say “The Trilogy” but he or she is clearly not referring to the original three Star Wars movies). The live issue in the trilogy of cases was the appropriate amount of compensation that the Court ought to award to an injured person for their pain and suffering (or non-pecuniary general damages). The trilogy of cases each involved an injured claimant – a youngster – who had sustained significant injury, such as quadriplegia or a severe acquired brain injury. Those injuries represented some of the most severe and substantial injuries that a person could sustain, with resulting permanent impairments.
After careful consideration, the Supreme Court of Canada ultimately decided that the upper limit for an amount to be awarded for an injured person’s pain and suffering was $100,000.00. The rationale behind the Court’s decision was that an injured person was already able to recover the full extent of their monetary losses as a result of sustaining injury, such as for their past and future income loss, housekeeping and caregiving expenses, or for the costs of medications and assistive devices. Such damages could be objectively measured and quantified. Conversely, there was no such objective measure for how to compensate a person for their pain and suffering. The Court, as a matter of public policy and to ensure consistency in awards for pain and suffering across Canada, imposed the $100,000.00 “cap” as a consequence.
That was 1978.
Fast forward to the present. $100,000.00 in 1978 does not have the same value in 2015 dollars. Accordingly, the “cap” is subject to inflation and fluctuates, usually in a positive direction, from month to month and year to year.
Currently, the cap on compensation for pain and suffering is approximately $360,000.00. Every case is different. Similar injuries sustained by different people may have widely differing effects, outcomes, and symptomology. The quantum of compensation for pain and suffering also varies from case to case, even when the initial injuries are similar. Nevertheless, the current cap continues to be reserved for those cases involving injuries at the most severe end of the spectrum.