In the event of a motor vehicle accident, individuals who are insured may also have the option to file a companion lawsuit against the responsible driver. Both the tort case and the insurance claim can have a significant impact on each other, and it is important for counsel to understand the interplay between the two.
To be eligible for general damages, also referred to as compensation for pain and suffering, the insured person must have sustained either a permanent and serious disfigurement or a permanent and serious impairment of a significant physical, mental, or psychological function. This eligibility is outlined in section 267.5(3)(a) of the Insurance Act. (These thresholds were purportedly created to control the rising costs of personal injury litigation.)
However, there is a monetary threshold in place for these types of damages. In 2023, if the award for general damages is less than $147,889.59, it will be subject to a statutory deductible, which is currently set at $44,367.24. Similarly, awards for damages under the Family Law Act must be above $73,944.18 in order to avoid being reduced by the $22,183.63 deductible.
Not receiving adequate treatment or being placed under the Minor Injury Guideline can negatively impact the claimant’s case for general damages as it may prevent them from meeting the threshold. The principle against double recovery prohibits a person from receiving more than one compensation for the same injury. The Court of Appeal has provided a framework for calculating the reduction in compensation from accident benefits, which has evolved over time. Currently, the “silo” approach is favoured, allowing the tort defendant to deduct medical rehabilitation and attendant care benefits as they fall under the category of “health care expenses.”
In summary, suing for general damages in car accidents is a complex process, and legal representatives must have a full understanding of the various factors that can affect their client’s case. Being aware of the monetary threshold and statutory deductible, as well as the framework for calculating deductions from accident benefits, can help the claimant receive fair compensation for their injuries.
This article is part of the firm’s work in civil litigation.