A guide to claims for personal injury [with case studies]

Know what Canada’s law says about how to file claims for personal injury, the factors in computing claims, and some of the biggest claims in Canadian history

A guide to claims for personal injury [with case studies]

Aside from the suffering they’ve already experienced, lawsuits for claims for personal injury are another cause of stress for victims and their families.

As such, lawyers hope to mend their sufferings – at least for the legal side of it.

With the help of the law, victims may seek redress from erring or negligent persons and institutions through claims for personal injury.

This article is a guide for personal injury victims and their lawyers, who want to know what claims for personal injury are and in estimating the damages they would be asking for. Personal injury lawyers may also use this guide to help clients become aware of their rights when claiming damages for personal injuries.

Is suing for personal injury possible in Canada?

Canada’s laws allow victims to sue another person (or an organization or institution) for personal injury.

Canadian law has many rules on what the victim must prove, how much a victim can get as damages, and other considerations when filing claims for personal injury.

During trial, the issues that will be resolved are:

  • Is the defendant liable for the plaintiff’s personal injury?
  • How much are the damages to be awarded?

Elements of personal injury cases

Claims for personal injury are successful only if the victim (or plaintiff) can establish the following elements of personal injury cases:

  • duty of care
  • breach of duty of care
  • causation or relation
  • damage

Canada’s common law, through numerous cases, has thoroughly explained these elements to further help future victims in filing their claims for personal injury.

These elements will also help plaintiffs in preparing their evidence to be presented in court.

Duty of care

First, the defendant must have a duty of care towards the plaintiff.

For example, this duty may refer to:

  • a doctor’s medical duty over their patients
  • a driver’s duty to drive carefully to prevent road accidents
  • an employer’s duty in making the workplace safe

Breach of duty of care

Next, claims for personal injury must establish that the defendant breached this duty of care expected of them. The breach may refer to the defendant’s negligence, or willful violation of the law.

For example, a driver’s duty of care is breached when they drive recklessly or drive under the influence of alcohol or prohibited drugs.

Causation or relation

Another point that must be established by the plaintiff is that their injuries were caused by the accident or negligence by the defendant.

The plaintiff must prove that their injuries would not have occurred “but for” the accident, or that the accident contributed to their injuries.

This is called the “but for” test under Canada’s common law.

Damage

Lastly, there must be damage because of the defendant’s breach of duty of care. This damage can be in the form of physical or psychological damage.

As discussed below, there are different damages that can be attributed to the defendant’s breach of duty.

When damages are claimed, they must be supported by evidence to convince the court that it is just and appropriate.

Watch this video on how long claims for personal injury are settled:

You can find more articles on Canadian laws and actual case regarding claims for personal injury in our Practice Area page on Personal Injury.

Limitation periods on claims for personal injury

Suing or filing for claims for personal injury in Canada is subject to the limitation periods imposed by the provincial and territorial laws. Under these laws, a civil claim or action cannot be filed after the lapse of these limitation periods.

In most provinces and territories, a plaintiff has two years to file their claims. The clock starts from the time the injury occurred or when there was knowledge of such an injury.

Some provinces or territories may have shorter or longer limitation periods for civil cases, such as claims for personal injury.

Plaintiffs should consult a lawyer right after the accident happened, so that their claims will not be barred by these limitation periods.

What are the biggest claims for personal injury in Canadian history?

Some of the biggest Canadian claims for personal injury are rarely publicized due to sensitivity or confidentiality issues. However, there are certain personal injury lawsuits that are widely known because they have set an important precedent for future personal injury cases.

Below are few of the biggest claims for personal injury in Canadian history:

MacNeil (Litigation Guardian of) v. Bryan et al: $18.4 million

The case of MacNeil (Litigation Guardian of) v. Bryan et al [2009] O.J. No. 2344 is one of the largest claims for personal injury in the province. It was decided by the Ontario Superior Court back in 2009.

In this case, the amount of damages awarded to Katherine-Paige MacNeil by the court was in the sum of $18.4 million.

Out of this amount, $15 million alone was awarded for MacNeil’s future care. This consisted of basic supervisory care from a personal support worker for 16 hours a day for the rest of MacNeil’s life.

That MacNeil would be unemployable for the rest of her life was another factor the court considered in deciding on the amount. This justified the compensation granted to MacNeil for her loss of future income.

This case involved 15-year-old MacNeil who was riding in the backseat of a car driven by 16-year-old Trevor Bryan. MacNeil was the only passenger who wore her seatbelt (eliminating contributory negligence on her part).

Bryan ran past a stop sign, hit a ditch, and landed in a field off a highway. The accident caused MacNeil several injuries, such as a fractured skull and permanent brain injuries.

The case of MacNeil is an important one because it has set precedent over the costs of future care. It also shows that claims for personal injury may include future costs (aside from present and past ones).

Gordon v. Greig: $23.7 million

The case of Gordon v. Greig [2007] O.T.C. 144 (SC) is one of the largest claims for personal injury in Canadian history with regards to spinal cord and brain injuries.

Decided by the Ontario Superior Court in 2008, the amount of damages awarded to the two victims totaled $23.7 million.

$11.37 million was awarded to Derek Gordon, who suffered brain injuries. The remaining $12.33 million was awarded to Ryan Morrison, who sustained a spinal cord injury.

These amounts were awarded to both for the following costs:

  • lost income (past and future)
  • attendant care and future care
  • housing costs

The amount also included general and special damages. The court considered contributory negligence on Gordon and Morrison, which was deducted from their total damages.

Their injuries were due to a car accident in 2003. Gordon and Morrison were passengers of a pickup truck driven by Corey Greig, who was reportedly drinking while driving.

Greig was speeding and lost control of the pickup truck when it swerved to miss an approaching car. The pickup truck rolled over and threw Morrison and Gordon into a ditch.

Both sustained multiple injuries due to the accident.

Gordon’s brain injury resulted in the loss of bodily functions, such as bladder and bowel control, sexual functions, and loss of senses (smell, taste, hunger, and temperature). Meanwhile, Morrison’s spinal cord injury made him paraplegic.

Along with MacNeil (Litigation Guardian of) v. Bryan, the case of Gordon v. Greig reveals that courts may award large sums for future costs of care. Not to mention that these costs are now increasing over time.

To learn about what a personal injury lawyers does, specifically for persons who have spinal cord injuries, watch this video:

Sandhu v. Wellington Place Apartments et al: $14.2 million

Another important case for claims for personal injury is Sandhu v. Wellington Place Apartments 2008 ONCA 215.

This case gives an insight for plaintiff on how courts may apportion the liabilities of both the plaintiff and the defendant.

The case was decided in 2008 which awarded the 2-year-old Harvinder Sandhu and his family the amount of $14.2 million which consist of the following:

  • general damages for non-pecuniary loss
  • future loss of income
  • costs of future care
  • guardianship costs

In 1997, the young Sandhu fell to a concrete pavement from a damaged window of an apartment rented by his aunt and uncle. This five-storey fall resulted in Sandhu’s brain injury and multiple fractures.

One factor that affected this award of damages is that the jury found contributory negligence on the part of Sandhu’s parents.

While the landlord was 90% liable, Sandhu’s parents were also 10% liable according to the jury. The landlord’s liability was largely because they were asked to repair the damaged window before the accident happened.

What damages can you get for personal injury in Canada?

Under Canada’s law, there are several types of damages that plaintiffs can recover in claims for personal injury, such as:

  • Compensatory damages: special and general damages
  • Non-compensatory damages: aggravated, nominal, punitive damages

Cap on general damages

There is a cap on general damages under Canadian laws, unlike for special damages.

This common law rule was made after the Supreme Court issued the “trilogy cases” on damages, putting a cap on non-pecuniary or pain-and-suffering damages. The cap is at $450,000 and is regularly adjusted to reflect inflation.

What is the average payout in claims for personal injury in Canada?

There really is no average payout in claims for personal injury in Canada. What is appropriate for one case does not apply to another.

Precedents found in Canadian common law are helpful for victims when calculating their own damages to be claimed in court.

Here are some factors that plaintiffs can consider when calculating their amount of damages.

Factors in calculating damages and compensation

These are usually considered when calculating damages in claims for personal injury:

  • injuries sustained by the plaintiff: this is helpful when calculating actual medical and/or rehabilitation costs
  • extent of the injuries: used by the court to measure the gravity of the injuries to the plaintiff when deciding for non-compensatory damages
  • injuries’ effect to the plaintiff: this is considered when measuring the future costs of the plaintiff’s medical care, including his/her ability to be employed

When damages are apportioned

A claim for personal injury may involve several defendants. For instance, the defendant in a road accident may be the driver, the employer, and/or the insurance company. In this case, the court’s award of damages will be apportioned among the several defendants.

Contributory negligence

Contributory negligence will also affect one’s claims for personal injury because rules may differ in every province or territory in Canada. This is especially applicable when there are two or more defendants in a case.

In most cases, the damages will also be apportioned between the plaintiff and the defendants if there’s contributory negligence on the part of the plaintiff. How this is apportioned between the plaintiff and the defendants varies in every province.

Under some provincial laws, such Ontario’s Negligence Act, the defendants will be jointly and severally liable to the plaintiff. This means that the plaintiff may collect from all, some, or any of the defendants. If one defendant pays, the paying defendant may ask contribution from the other defendants.

On the other hand, other provinces provide that the defendants’ liability will only be several (not joint and several). One example of this is under British Columbia’s Negligence Act. This means each defendant is only liable for the damage they are responsible for.

Looking for Canadian lawyers and law firms to help you with your claims for personal injury? Head over to our Special Report on the Top Personal Injury Boutiques 2023.

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