Proving damages in an injury claim
This column is the last of three, for how to prove your personal injury claim. It is the piece de resistance of the trilogy, the Chuck Norris piece – the final say! As mentioned in the first two columns, there are three things you need in order to prove your injury claim: 1) Liability; 2) Causation; and 3) Damages. In essence, someone else has to be legally at fault for your injuries, your injuries must have been caused by the accident (not some pre-existing condition or post-accident event); and as a result of those injuries, you must have suffered some compensable damage or harm. In this column, I deal with “damages". For those who know me, it will come as no surprise that I had to reference Chuck Norris in this article. Plus, damages always follow Chuck Norris.
Of course, “damages”, is the piece that everyone thinks about when they think of personal injury claims. It’s the money, the cash, the bankroll, the mucho dinero. The purpose of a damage award in a personal injury claim is to put you, the plaintiff back in the same position you would have been in if the injury did not occur to the extent that money will allow.
In a personal injury claim, damages take two forms: 1) Non-pecuniary damages, more commonly referred to as “pain and suffering” and 2) Pecuniary damages, which are the financial losses that flows from the injuries and includes things like: wage loss, special damages, future cost of care, in-trust claims, etc. The subject of damages occupies many leather-bound books (a Ron Burgundy reference for you crazy Anchorman fans) so with this column I can only scratch the surface.
Proving that you have suffered non-pecuniary damages from an accident is often a given, but not always. Bad food claims help illustrate this point. I will often get phone calls or emails from people who have found a piece of glass, a bug or something that does not belong in their food (usually gross) and they want to know if they have a case. My first question is always: “Did you get sick or were you hurt as a result?” While you might be totally grossed out about finding a piece of a rubber glove in your chicken burger (yes this did happen), the fact is that unless you were somehow injured as a result, your only claim (the only compensable damage you have suffered) is the cost of the product you purchased. Being “grossed out” is not a compensable pain and suffering claim, unless it occurs in combination with a physical injury or you suffer a psychological injury (a provable recognizable psychiatric illness) as a result.
If you did get sick or suffer an injury as a result of an accident, you have to prove what those injuries are and the extent to which they affect your life. You might be surprised to hear that the insurance company or defendant is not going to just take your word for it.
So how do you prove your damages for pain and suffering? Well, the most common way is to provide the insurance company (usually through your lawyer if you have one) with copies of clinical records from the hospital (if you attended one), your doctors, and any other caregivers you may have seen as a result of your accident. Many injuries, like whiplash, soft tissue injuries, fibromyalgia, chronic pain, concussion, mild traumatic brain injury and psychological injury (just to name a few) are not visible and do not show up on x-rays, CT Scans or MRI’s so you need to get a doctor to confirm your injuries and document the impact of those injuries and your recovery. So, for all you Chuck Norris wannabes, if you are injured in an accident and want compensation, now is not the time to be tough. Go to the hospital or doctor for diagnosis, treatment and follow-up care.
In more serious injury claims, your lawyer will also prove your damages through medical-legal reports and may send you to a specialist (or several) for an independent medical exam for further assessment and diagnosis. If your injuries are visible (cuts, bruising, scaring, burns, fractures, etc.), photographs, video footage and medical imaging are extremely valuable for proving your damages. Also, keeping a diary or pain journal is often recommended.
Once diagnosis of your injuries is confirmed, that diagnosis in combination with evidence for how it has affected your life will be compared to similar cases that have gone to trial to arrive at an amount of compensation for pain and suffering.
As mentioned above, pecuniary damages are damages that are related to financial loss you have incurred or are likely to incur in the future as a result of your injuries. Again, not surprisingly, the insurance company is not just going to take your word for the financial losses you have suffered and the ones you believe you will suffer going forward. These need to be proven. Sometimes these are relatively straight forward, like special damages, which are the out-of-pocket expenses that you have suffered as a result of the accident and are typically proven by providing receipts. In other aspects, particularly claims for future wage loss/loss of earning capacity or future cost of care these are not straight forward and evidence proving these claims are critical.
Proving past and future wage loss claims is done through a combination of the medical evidence, such as medical notes or reports which confirm your inability to work and evidence related to your employment income and actual time missed from work (the amount lost). Typically, ICBC will have your employer fill out a Certificate of Earnings (Form CL 15). Other documentation such as academic transcripts, your employment file, income tax returns, T4 slips, ROE’s, pay-stubs, financial statements (for the self-employed), resumes, etc. may also be used to help support both past and future wage loss claims.
Where you have suffered a permanent injury that affects your ability to work, your lawyer may also have you undergo a Functional Capacity Evaluation with an occupational therapist (this will measure your functional limitations), and possibly a Vocational Assessment with a vocational expert to determine your residual employability. These experts and their reports assist in proving your claim for future income losses.
Future cost of care claims are typically proven through your medical experts and with larger cases, with the help of occupational therapists or life care planners who prepare reports setting out all your future care needs and related costs. Where large amounts are being claimed for future losses, your lawyer will also often require the assistance of an accountant, economist or actuary to assist with calculations.
If your case goes to trial, your damages will not only be proven through your testimony, your doctors and other experts, but it will also be proven through the testimony of your employers, co-workers, friends and family who will provide evidence about the pain and suffering you endured, time missed from work, care requirements and the overall impact the accident has had on your life. Getting statements from these people early on can be helpful for proving your damages down the road.
In conclusion, proving that you suffered a compensable injury is critical to getting a settlement or an award in your personal injury claim. How much money you receive will depend on how well you or your lawyer proves the injuries suffered, the effect on your life and the financial consequences that flow from those injuries. Having a lawyer who understands the intricacies of personal injury claims can be paramount in getting an appropriate damage award for your claim.
*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.
Read more INJURYwise articles
- Do I have an ICBC claim? Feb 21
- Proving damages in an injury claim Dec 7
- Proving causation in an injury claim Nov 5
- Proving liability in an injury claim Sep 30
- When should I settle with ICBC? Jun 3
- Minor accident - minor injury? May 4
- ICBC says I don't need a lawyer Mar 3
- ICBC ought to include a warning Feb 3
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