When you sustain personal injury in an accident, your claim is based on losses that your lawyer thinks you would be able to prove if your case went to trial. Although you probably feel that you have lost more than just money because of your injuries (be it a brain injury, a fracture, or chronic pain), a money judgment is the only way to compensate you for your losses.
Your lawyer will explain to you what you are entitled to in various categories. Lawyers call these “heads of damages”.
The heads of damages that you can claim for your injuries themselves is called by several different names. It can be referred to as “general damages”, “non-pecuniary damages” or “pain and suffering damages”.
When you first retain your lawyer, he or she will not be able to tell you immediately how much your injuries are “worth”. This is because they will need to go through a number of steps before they can make this assessment.
First, they will look at your medical records, records from other treatment providers such as physiotherapists or chiropractors, and possibly send you to a specialist to get an expert medical/legal opinion.
Next, they will not want to make this assessment until your doctor tells you that you have completely healed up, or that you have reached what is called “Maximal Medical Improvement”, or “MMI”. MMI simply means that your doctor thinks that your injuries have plateaued and that you will not improve any further. For example, if you have a soft tissue injury which turns into chronic pain and your doctor says he does not expect further improvement, you may have reached MMI.
Your lawyer will also want to find out from you, and possibly an expert, what effect your injuries have had on your day to day life and activities.
It is only when your lawyer has a complete picture of your injuries that they will be able to assess how much a Judge might award for pain and suffering damages.
To make this assessment, they will look at cases that have been decided by the Courts in Alberta and possibly other provinces of Canada and find cases where the injuries are as similar to yours as possible. Of course, no 2 people have identical injuries or treatment, so lawyers usually look at many cases in order to assess your damages.
Judges in decided cases look at many factors in deciding on the amount of damages to award for pain and suffering in personal injury cases. Some of the most important ones are: (a) the seriousness of your injury; (b) whether or not you had to have surgery; (c) the amount and kinds of treatment that you had; and (d) whether you will have ongoing problems.
For example, if you have a fractured leg, you would likely be awarded more money if you had to have plates and screws inserted than if you were only treated with a cast.
Your lawyer will find the cases that are closest to your situation, and assess the amount of damages that you would likely get for your injuries if your case went to court. Your lawyer will most likely tell you a range of damages, with a “best case scenario” and a “worst case scenario”. This is because cases are heard by many different Judges, and every person’s injuries and treatment are different, so there is no “set number” for any given injury.
You can see that lawyers must go through a lengthy process to properly assess how much money you should get for your injuries, so please be patient while they do so; this may seem to take a while but personal injury lawyers go through the process to make sure that you get a fair award for your injuries. You can get a fast award or a fair award, but usually not both!
Article by Susan Fisher, a personal injury lawyer in Calgary, Alberta.