How do I get compensated for my losses due to a traumatic amputation?
Amputation of a body part due to injury is obviously one of the worst types of injury which can occur. Many of these injuries are caused by explosions, bomb or IED’s. Other causes of these types of injuries are motor vehicle accidents, and industrial accidents.
Aside from issues of liability, which will be discussed in a further post, the value of appropriate compensation for an injury comes under several different categories of damages, and it is important to consider each of these as it may pertain to the facts of the case.
General Damages
1. Pain, Suffering, and the Loss of Enjoyment of Life
The term “general damages, refers to a sum of money paid to the plaintiff as compensation for the pain and suffering that someone experiences because of their injury. This is meant to compensate the plaintiff for the physical, emotional, and psychological impact that the injury has on their life. It is important to know that in Canada, there is a cap on the amount of money which can be awarded under this head of damages.
In 1993, the Supreme Court of Canada took up the issue of compensation for personal injury claims. The Court took three cases of young people who suffered multiple limb paralysis as a result of motor vehicle accidents (Andrews v. Grand & Toy Alberta Ltd. [1978] 2 SCR 229, Arnold v. Teno, 1978 CanLII 2 (SCC), [1978] 2 S.C.R. 287, and Thornton v. Prince George School District No. 57, 1978 CanLII 12 (SCC), [1978] 2 S.C.R. 267). The “trilogy” as these cases are known, established an upper limit of $100,000 for general damages awards. Subsequent decisions allowed for the indexing of this limit to inflation. As of 2022, the upper limit, or “cap” was approximately $419,00.00 In imposing the cap, the Court considered that non-pecuniary damages was “an area wide open for extravagant claims” and that there was a “great need for accessibility, uniformity, and predictability” in the area of assessing bodily injury damages. The existence of the cap obviously reflects a judicial desire for uniformity and predictability of awards, as well as a marked fear of excessive damages.
Economic Losses
2. Loss of Income
This head of damage is intended to compensate the plaintiff for income lost as a result of his or her injuries. If the Plaintiff has only one job, and is paid a set salary, this calculation can be relatively straightforward. However, in cases involving multiple sources of income, commission-based income, or self-employment, it can be quite a complex endeavor. Accounting and economic experts are often required to properly calculate loss of income.
3. Loss of Earning Capacity
In addition to loss of past income, the plaintiff may lose the ability to earn income in the future. Loss of earning capacity requires expert reports similar to past loss of income, and to include contingencies regarding potential retirement age, potential or loss of potential for career advancement, and other factors.
4. In-Trust Claims
If a plaintiff is or has been unable to care for themselves, family members may have provided services to them for which they are rarely paid. The plaintiff should advance a claim for these services, which would be based on the value of the services received, even though no expense was incurred. This is referred to as an in-trust claim.
5. Loss of an Interdependent Relationship
The old saying goes “Two can live as cheaply as one”. Whether this is accurate or not, some courts have recognized that there is a financial benefit to being in a committed relationship. The financial benefit results from the fact that partners are able to pool their income and share expenses. There have been some cases where plaintiffs have been able to establish that because of their injuries, they are less likely to enter into a committed relationship. The financial loss they have suffered or will suffer because of the loss of ability to enter a committed relationship is also a compensable part of the claim.
Special Damages
6. Cost of Care
Compensation for cost of care refers to the claim for the recovery of money which has already been spent by the plaintiff to pay for expenses such as medical or paramedical treatment, medical and home care equipment, prescriptions, physiotherapy, and attendant care.
7. Future Cost of Care
Future cost of care is a prediction of the amount of money that will be required to care for the plaintiff in the future. This may include future expenses for treatment, equipment, medications, physiotherapy, and attendant care. There may be a need for an expert report regarding the life expectancy of the plaintiff. In some cases, future cost of care funds are awarded as a one-time lump sum payment, but in many cases the funds are provided through an annuity, where the plaintiff receives monthly payments.
8. Loss of Valuable Services
In addition to losses related to employment, a plaintiff may lose the ability to perform housekeeping and home maintenance chores. This claim is often overlooked if the plaintiff has not had the means to actually incur a cost as a result of not being able to perform household tasks, but the loss of the ability to do these chores themselves is a compensable head of damages.
9. Out-of-Pocket Expenses
If the plaintiff has had to spend money as a result of the injury, they are entitled to recover any money that was spent. In addition to medical and care costs, a plaintiff should be able to recover expenses for travel and parking for medical appointments, including meals, hotels, and other similar items. These amounts should be documented to provide evidence of the relevant expenses.
10. Gross-Up
This is a technical term for the amount that is added to an award for future care expenses, to compensate for the taxes that will be payable on the interest income derived from the future care costs award in the time before the plaintiff actually incurs these costs. Future care costs are awarded in present-day dollars. Settlement or judgement funds are not taxable income, but any interest earned while the plaintiff is holding these funds would be. Thus, the need for the “gross-up”, to ensure the plaintiff does not lose on the eventual value of the services by means of the taxation on the income resulting from the award.
11. Housing Accommodation or Modification
If the plaintiff has suffered an injury which affects mobility to the point where the plaintiff’s home requires accommodation or modification, these costs should be recoverable.
12. Adaptive Vehicles
In a case where an adaptive vehicle is required to transport a plaintiff due to a disability, the cost of either adapting a vehicle or buying an adaptive vehicle can be included in the plaintiff’s claim.
13. Loss of Pension Benefits
In some circumstances, it is possible for a plaintiff to advance a claim for loss of pension benefits. This would be in case where the plaintiff has lost, addition to the loss of actual earnings and future earning potential, has also lost the right to participate in a pension program through their employment.
14. Investment management fees
If the award at the settlement or trial is large enough, and if the client is unable to manage the investment on their own, appropriate professional management should be sought. The cost of such management should also be included as part of the award.
15. Aggravated, punitive, and exemplary damages
These last heads of damages are non-compensatory, in that they do not strictly correspond to the loss suffered by the plaintiff. Aggravated damages are awarded when the conduct of the defendant has been such that it caused additional and unjustified distress to the plaintiff.
Punitive damages and exemplary damages are damages awarded to the plaintiff which are intended to punish the defendant for reckless, high-handed, or malicious conduct. These are rarely awarded, with the most common situation being that of punitive damages being awarded against an insurer for denying a claim, and claiming, without substantiation or justification, that the insured was attempting to defraud the insurance company.
Aggravated, punitive, and exemplary damages are not generally available in cases of negligence. However, there are instances where the courts have awarded these types of damages where the conduct of the defendant, either in allowing the accident to happen, or in their denial of coverage under a policy of insurance, has been grossly unfair to the plaintiff.
16. Interest
Interest can become a significant part of an injury claim, especially if the claim has taken several years to make its way through the litigation process. The pre-judgment interest in personal injury matters depends on the interest rates at the time, but when there are five or more years involved, interest can be a very significant area of recovery which should not be overlooked.
Conclusion
Compensation for amputations and other very serious injuries comes under many heads of damages. It is important for the counsel for the plaintiff to document each and every form of loss, in order to be able to advocate appropriately and achieve a result that gets the client the financial benefit they deserve.
The team at Singer Kwinter, are experts at assessing each file and making the strongest arguments possible on behalf of each client. If you or someone you know has been involved in an accident that caused amputation, please contact us today for a free consultation.
