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Is your personal injury claim “capped”?

People who are injured in a car accident through the fault of another are entitled to compensation. Generally speaking, this compensation is based on the difference between your life before and after the accident. For example, where the injury results in income loss, compensation is assessed by calculating what you likely would have earned “but for” the accident versus what you will likely earn given your injuries.

Income loss is only one area of compensation but it is not intended to compensate for the pain and suffering or loss of enjoyment of life that one experiences following an injury. That category of compensation is often referred to as “general damages” (it’s a loss that you cannot come to mathematically in the way you would for income loss). The pain and suffering awards are largely based on precedent; what judges have awarded victims of similar injuries. However judicial precedent can be altered by legislation.

Like most Provinces, Nova Scotia has a legislated a “cap” on general damages for car accident victims. This means that “pain and suffering” compensation for injured victims of car accidents may be limited or capped. This cap in subject to the price index and increases annually. In 2015, the “cap” was $8,352 [http://www.novascotia.ca/finance/en/home/insurance/insurancecap/default.aspx].

Whether your compensation is capped will depend on a variety of circumstances, which will be discussed in this blog. A few important things to note:

(1) the “cap” only applies to general damages/pain and suffering. There is no cap on the amount of compensation one can receive for income loss, costs of care, out of pocket expenses, etc.

(2) the “cap” only applies to injuries sustained in a car accident. If you are injured through any other means by the the fault of another, you are entitled to full damages without a limit on your pain and suffering compensation.

(3) the “cap” only applies to car accident injuries that meet the strict definition of a “minor injury”. Insurance companies will have car accident victims believe that their claim is certainly caped. In fact, the opposite is true. An experienced lawyer, familiar with the legislation, is often able to establish that a car accident victim’s injuries are not capped.

In Nova Scotia, the legislation has chosen to define “minor injury” as sprains, strains, and certain types of whiplash associated disorders (WAD). Doctors will diagnose a WAD when a car accident causes the connective tissues and/or muscles to become injured by the forces of acceleration or deceleration in a car accident. There are four WAD categories, increasing with level of severity. A WAD 3 or 4 is explicitly outside the definition of a “minor injury” and therefore are not subject to the “cap”. These include injuries that result in neurological symptoms or fractures.

If your doctors diagnosed you with a WAD 1 or 2, you may still be entitled to pain and suffering compensation outside of the “cap”. You have the onus to show that your muscle/tissue injury has resulted in permanent pain and impairment causing you to be:

  1. substantially unable to do the essential tasks of your regular employment, occupation or profession OR
  2. substantially unable to do the essential tasks of your training, education or employment OR
  3. substantially unable to do your normal activities of daily living

The onus of proof is on the car accident victim. If you have suffered a whiplash/soft tissue injury that it limiting your enjoyment of life, it is recommended that you speak with an experienced personal injury lawyer. The cap legislation is complicated and proving that your injury falls outside of the definition of “minor injury” often requires some expertise in the area. It is therefore very important that you speak with a lawyer about your particular situation.

Mike Dull

Litigation Lawyer

Mike is the founding partner of Valent Legal. His entire career has been dedicated to representing victims of serious injuries, sexual abuses, medical negligence, and corporate and pharmaceutical wrongs.

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