The Humboldt Tragedy – A Review of Pain and Suffering Damages
May 3, 2018
The recent crash involving the Humboldt Broncos junior hockey team hit the whole country hard. With 16 people killed and 13 injured, including a player who is paralyzed, the accident brought the sports community and others around the world together. While the accident is still under investigation, there is the possibility that some of the victims or their loved ones may seek damages in civil court. But what can they expect to get? A 40-year-old Supreme Court decision and a Saskatchewan law will come into play.
A Limitation of Pain and Suffering Damages
Pain and suffering damages, also known as general damages, are damages that do not fall under any other category and represent those that cannot be quantified. Other damages include loss of income, loss of income potential, and future care costs. These types of damages can be quantified. Pain and suffering refers to the suffering of the individual who has lost someone or who has been injured. Some plaintiffs (i.e. individuals bringing a lawsuit/seeking damages) use the example of: what about the pain I’m going through? Or what about the fact that I can’t play with my kids anymore?
In 1978, the Supreme Court of Canada ruled that the maximum amount of compensation one can get for pain and suffering for major injuries is $370,000 (originally $100,000 in 1978 but it has now been adjusted for inflation). The court held that the amount of compensation can go beyond the cap in exceptional circumstances, but this rarely happens. Major injuries include such injuries as paraplegia or quadriplegia. Pain and suffering damages for minor injuries, such as whiplash, are often capped by the provinces, or by insurance companies.
Bereavement Damages and Other Damages
In Saskatchewan, spouses who have lost their partner are limited in terms of how much they can get in bereavement damages in a civil claim. Saskatchewan law limits these damages to $60,000. In Alberta, bereavement damages are capped at $82,000. The parents and children of those who passed could receive a maximum of $30,000 each, while in Alberta; they would be looking at a maximum of $49,000.
As mentioned earlier, there are other damages that injured parties can claim. Loss of income relates to how much income you have lost as a result of your injury, whether it is because of time you have had to take off, or modified duties. Loss of potential income is a little different because it does require some speculation as to how much you could have made in your lifetime “but for” the injury. It is not an exact science as there are some variables (such as a change in career) that the courts cannot take account for, but the courts do what they can with the information they have. Future care costs relate to the extra costs required for you to live a life similar to what you were living before the injury. For some people, this includes the costs of medical equipment (such as wheelchairs, canes, braces) or treatments (physiotherapy, chiropractor visits, massage therapy) or medication costs.
Saskatchewan Insurance Policies
There are no caps for loss of income, loss of potential income, or future care costs, so while people can get more for these types of losses, they are still limited for pain and suffering. Further, Saskatchewan has insurance policies that make the possibility of getting damages more complicated. For example, under the Saskatchewan Government Insurance (similar to what British Columbia has), when someone is injured in a crash, they are entitled to automatic benefits through the “no-fault” insurance program. However, this program prevents injured parties from suing for pain and suffering. There are exceptional circumstances where someone can sue, such as where the driver who caused the injury was convicted of a criminal offence like impaired driving.
Saskatchewan residents also have the option to choose “tort” insurance. This type of insurance allows people to sue freely for damages, but this type of insurance has fewer automatic benefits. It also requires parents, children, or spouses of those who have passed away as a result of the accident to sue for bereavement damages under the Fatal Accident Act. Some Saskatchewan lawyers argue that the insurance policies and Act are due for a review.
Challenging the Supreme Court decision
Some personal injury lawyers across the country have argued that the pain and suffering cap is too low and outdated. In 1978, society’s understanding of pain and suffering was very different from what it is now, and the compensation given to injured parties should reflect the compassion we Canadians pride ourselves in. The mental aspect of an injury is far greater than originally thought, and with developments in psychology and our understanding of how the brain and our mental well-being effects every part of recovery, it is argued that the cap does not reflect our values.
There are concerns that removing the cap will result in damages rising to the levels that are seen in the United States, for example in the millions of dollars range. There is always that possibility, however, given the way our courts refer back to one another, and our precedent system (a higher court sets the standard for other courts), it is unlikely that we will see the damages that are awarded in the United States.
Since the Humboldt crash is still under investigation, it is unlikely that any suits will come for some time. However, given the age of the surviving victims, and how greatly some of their lives have been changed, it is arguable that the Supreme Court cap needs to be changed or removed altogether. Perhaps this tragic event will change the landscape for pain and suffering damages, but only time will tell.
If you have been in an accident and have been seriously injured, you may have a claim for damages. To find out what your options are, contact HMC Lawyers today. Our Personal Injury lawyers have the experience and compassion to help you through this difficult time. Call us at 1-800-480-3534 or contact us online to make an appointment today. With offices in Calgary, we represent professionals in Calgary, throughout Alberta, and across Western Canada.