THE NEW CAP FOR PAIN & SUFFERING DAMAGES FOR MINOR INJURIES - WHAT YOU NEED TO KNOW

​In the context of minor injuries incurred from an automobile accident, $5,080 is the new maximum amount that can be claimed for non-pecuniary damages (pain and suffering) in Alberta, effective January 1, 2018. This cap was adjusted upwards by 1.2%, from $5,020 in 2017. The cap applies where the accident giving rise to the injuries occurred on or after January 1, 2018; the cap is not based on when a claim is actually filed with the courts.

When Did the Cap Start & Why?
Legislation capping damages available for pain and suffering, in the event of minor injuries incurred in an automobile accident, came into effect in 2004 in Alberta. At that time, the cap was set at $4,000. The regulations mandated that the cap would increase annually, in accordance with the consumer price index, to reflect inflation. 

You may wonder what the policy rationale was that led to the cap being legislated. In essence, the cap was established as a means to balance the ability of injured victims to claim compensation for pain and suffering with the concerns of insurers facing rising costs. Of course, insurers argued not only that their own costs were increased, but that these costs directly led to costs to consumers in the form of increased insurance premiums. The cap was intended to control the costs associated with payouts for minor injuries, and to discourage litigation and its associated costs. 

What Makes an Injury “Minor”?
One of the most difficult aspects of determining whether the cap applies is deciding which injuries, if any, should be classified as “minor” or “non-minor”.

Alberta’s 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. This is where things get a bit complicated. A WAD injury is 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 lengthy and complex, and it makes reference to one’s ability to perform tasks of employment and everyday activities.

The complex definitions above speak to the difficulty of establishing whether or not an automobile-accident victim is subject to the cap. 

Who Does the Cap Benefit & Disadvantage? Is the Cap’s Purpose Being Met?
As above, the policy reasons for the establishment of the cap include balancing the costs to insurers and insureds with the need to ensure that accident victims are adequately compensated. 

Some people argue that the cap unfairly limits accident victims. Many people also argue that the complexity of the definitions does little to aid in clearly defining who is subject to the cap and who is not, and that consequently, the aim of lowering litigation costs is not achieved (i.e., because disputes arise surrounding whether or not certain victims fit the complex criteria that define “minor injury”). Many individuals with serious injuries may have to do an extensive amount of legwork in order to prove that their injuries are sufficiently serious not to be subjected to the cap. At the same time, insurers may try to convince unaware injured victims that any determination made by the insurer is final. 

Disputes surrounding whether a victim is or is not subject to the cap creates hassle and expenses for both the injured and the insurer. 

Pain and Suffering Damages are Not the Only Relief Available
Despite the difficulties that arise from a complex definition of “minor injury”, car accident victims should be aware that this cap is for pain and suffering damages only (also known as non-pecuniary or general damages) and does not apply to amounts available for medical treatments and lost income resulting from injuries. Injured victims can rest assured that these expenses are recoverable, insofar as they can be proven.

Unfortunately, if an injury is deemed to be “minor”, proving that large medical expenses were necessary, or that time away from work was justified, can be more difficult. Experienced personal injury lawyers can help you navigate the documentation and proof required to make your claim and help to ensure that you receive the maximum compensation you are entitled to. 

Speak to a Motor Vehicle Accident Lawyer at Braithwaite Boyle Accident Injury Law
If you have been injured in an automobile accident in Edmonton, Red Deer, or Calgary speak to a personal injury lawyer immediately. Too often, injury victims deal directly with the insurer, accept the first amount of compensation that they are offered, and do not take all steps to ensure that they receive the compensation they need and are entitled to. Further, the process of dealing with an insurer can be extremely time-consuming and confusing. 

The lawyers at our firm are experienced in automobile accident law and will help you receive the compensation that you need. Call us today for an accident lawyer in Edmonton, Red Deer, Calgary at 1-800-661-4902.