The new cap for pain and suffering damages due to minor injuries incurred from an automobile accident in 2018 is $5,080. This is a 1.2 percent increase from the previous year, as per Alberta’s Minor Injury Regulations, which mandate that the cap is to increase each year in accordance with inflation. The cap on pain and suffering damages for minor injuries was originally set at $4,000 in 2004.
What Defines a “Minor Injury”?
Unfortunately, the definition of “minor injury” pursuant to the regulations is, in some ways, anything but clear. The Minor Injury Regulation, made under the Insurance Act, defines a minor injury as a sprain, strain or WAD injury that does not result in “serious impairment”. A WAD injury is then defined as whiplash-associated disorder that does not exhibit either: (i) objective, demonstrable, definable and clinically relevant neurological signs, or (ii) a fracture to or a dislocation of the spine. The definition of “serious impairment” is rather lengthy but makes reference to the extent to which an injury hinders or prohibits a person from performing the tasks of his or her employment, and activities of daily living (examples include hygiene tasks, getting around, grocery shopping).
Other Relief Is Available
It should be noted that despite the cap, other relief is available to victims of minor injuries. The cap only applies to damages for pain and suffering — monetary compensation that is actually “unquantifiable”, also referred to as non-pecuniary or general damages. Injury victims are still able to claim compensation for medical expenses and income loss through Alberta’s no-fault accident benefits scheme. Where the maximum available under that scheme is insufficient to fully compensate the victim, the victim may also commence litigation against the third party driver (if they are at fault) in relation to remaining losses. Often, income loss benefits are insufficient to cover lost salary (the maximum available is $400/week), however medical benefits available under the no-fault scheme are capped at $50,000, which is sufficient to cover most minor injury victims.
How the Cap Could Impact Compensation
It is interesting to see how the implementation of the cap for pain and suffering damages has affected awards in court. For example, in the pre-cap decision Onofriechuk v. Dolman, 1998 ABQB 148, the plaintiff was awarded $16,000 for what the presiding judge held to be a “mild to moderate whiplash injury”. Taking into account inflation, this award would be over $20,000 in today’s money. Based on the facts of the case, it is arguable that today, this injury would be deemed to be a “minor injury” under the Minor Injury Regulations and would be capped at $5,080. This particular plaintiff did not claim for any medical or income loss damages. For some, the stresses of litigation may not be worth taking such a case to trial. However, as above, many cases settle prior to trial, with the help of a lawyer.
Similarly, in the pre-cap decision Martorana v. Lee, 1994 CanLII 8930 (AB QB), the presiding judge awarded the plaintiff $30,000 for pain and suffering, which would be between $35,000-$40,000 today. Like in the case above, the judge found that the plaintiff’s injury (in this case, a sprain of the neck and spine) was only mild to moderate, and that the injuries could have been expected to resolve in a finite period of time. The plaintiff in this case also suffered knee strain. Again, it is plausible that such injuries would now fall under the Minor Injury Regulation and be capped at $5,080. In this case, the plaintiff was awarded over $43,000 in income loss. In such a case, it would likely still make sense to litigate, under today’s regulations.
Should You Pursue a Lawsuit?
The new cap is designed to encourage you as the victim of a “minor injury” to assess whether it is worthwhile to pursue litigation against an at-fault driver. What is difficult to determine is whether an injury that first appears to be minor could later be more problematic for you.
Further, as above, the cap on pain and suffering damages is not the only compensation available; amounts may be available for measurable losses, such as medical treatments and loss of income from missing work. Of course, if an injury is found to be minor, the total amounts that courts will find to be reasonable for medical expenses and time off work will necessarily be less.
In deciding whether to pursue litigation, keep in mind the litigation process, which a personal injury lawyer can handle for you. At Braithwaite Boyle Accident Injury Law, we work on a contingency fee basis, which means we only charge fees if and when we obtain compensation for you. Consulting with us can help you decide whether litigation is for you, taking into account the specifics of your case.
Speak to Braithwaite Boyle, Accident Lawyers in Edmonton, Red Deer & Calgary
At Braithwaite Boyle, our personal injury lawyers are experienced. For example, Ken Braithwaite has over 40 years of experience as a lawyer, over 32+ years of which have been dedicated to personal injury law. In Edmonton, Red Deer or Calgary, we provide a free initial legal consultation if you have been injured in a motor vehicle accident. Call today at 1-800-661-4902.