The average settlement for the pain and suffering caused by a motor vehicle accident, which is the most common tort claim in Ontario, is $120,000. Given how difficult it is to determine the extent of pain and suffering endured as a result of a personal injury event, $120,000 would be a reasonable settlement to achieve.
However, with over 97% of settlements agreed out of court, there isn’t enough data to work out a more reliable average of what settlement amount to expect. This underlines why it is so important to engage an experienced personal injury lawyer before making a claim for damages.
A good lawyer will review your case and give a more qualified estimation for what would be a reasonable settlement claim. In fact, it is crucial to engage a lawyer soon after the injury event so they can advise on the evidence you will need to provide for your claim to succeed. Your claim will die and succeed on the strength of the medical and treatment evidence you can present at trial.
Court Awards For Pain And Suffering Are Capped in Canada
Since 1978, court awards for pain and suffering have been capped in Canada. The cap places a limit on how much a judge can award you for non-pecuniary damages, which are commonly referred to as ‘pain and suffering’. In today’s money, that maximum award would be in the region of $350,000.
The outcome of the so-called Trilogy cases, the Supreme Court set the maximum amount that can be awarded for pain and suffering at $100,000, which has been inflation-adjusted ever since. That said, judges rarely award the maximum amount for pain and suffering.
It is only in the case of extreme accidents, like where you lose limbs or brain function, that a judge may award the maximum amount or more in damages. By implication, you are unlikely to get an out-of-court settlement offer of more than $350,000 or anywhere near that amount if you went that route.
Pain And Suffering Damages Are Hard To Determine
While medical expenses and lost income can easily be listed and tallied up, the amount of pain and suffering one suffers after an accident event is hard to measure. Without a reliable scientific formula, assessment is subjective.
Looking at what falls under pain and suffering in terms of personal injury law, it is clear why it is hard to come up with a scientific formula to quantify it. How do you measure,
emotional distress,
loss of competitive advantage at work,
anxiety,
physical pain, or
loss of enjoyment of life?
Even harder, how do you put a financial value on each of those damages, seeing as they are so highly personal?
What a judge awards for non-pecuniary damages will depend on what you produce as evidence of the injury that you claim caused you the pain and suffering. Doctors’ reports, X-rays, scans of the injuries suffered, and the medications your doctor prescribed to manage your physical or psychological pain are some of the evidence you can present to the judge.
The Multiplier Method
Whether or not there is a reliable scientific formula for calculating pain and suffering, you would expect insurance companies to come up with one. Their success as businesses depends on their ability to predict and control expenses, and personal injury claims are a huge one for them.
One method insurance companies use to calculate damages is known as the multiplier method. Not nearly scientific, this method multiplies the total expenses that you have incurred as a result of your injuries – for example, doctor’s fees and medication – by any number between 1 and 5.
How the insurance company determines what multiplier to use in your case is entirely subjective. They will use factors like your likeability, criminal record, and how consistent your testimony has been.
So if you have been difficult in the negotiations, for example, you are less likable in their eyes. They can just decide to use a low multiplier and no law exists that would stop them.
Factors that Can Hurt Your Chances For A Good Settlement
Forget that pain and suffering settlement awards are subjective, there are factors that can reduce your chances of success in a personal injury case. Insurance companies will be looking for any evidence to prove that your own actions may have contributed to your injuries or their severity.
For example, if there is proof you had taken drugs prior to the accident event, your chances of succeeding with your claim drop by as much as 45%. Just as damaging is proof that you were not wearing your seatbelt or a helmet at the time of the accident. Add this to the stress of having your personal life publicly scrutinized during the trial and you see why so many of these cases are settled out of court.
Engage An Experienced Personal Injury Lawyer As Soon As Possible
We cannot overstate the importance of engaging a good personal injury lawyer early in the claims process. Your chances of success depend on it. While you may not decide to pursue a claim for damages after the accident, the actions you take may determine your chances of success if ever you decide to in the future.