By: Emma J. Neynens, Associate Lawyer
For accidents occurring on or after July 1, 2013, the maximum amount recoverable for pain and suffering for “minor personal injuries” suffered by the plaintiff as a result of an accident is $7,500. This amount is indexed annually.
You may have heard that if you suffer soft tissue injuries or whiplash that your injuries are automatically capped. That is not necessarily true and it is important to read the legislation carefully.
A “minor personal injury” is defined as any of the following injuries, including any clinically associated sequelae that do not result in “serious impairment” or serious disfigurement:
a) a contusion;
b) an abrasion;
c) a laceration;
d) a sprain;
e) a strain; and
f) a whiplash associated disorder.
The important thing to note is that it is a closed list of injuries that constitute a minor personal injury. That means, if you do not suffer from one of the 6 listed injuries or the clinically associated sequelae then your pain and suffering is not capped at $7,500. For example, if you suffer any fracture or a concussion then you are not subject to the minor personal injury cap because they are not identified in the list.
If you do suffer from one of the 6 listed injuries or the clinically associated sequelae then it is still possible for your pain and suffering damages to be greater than the minor personal injury cap. Your damages can be greater than the cap if they result in “serious impairment” or “serious disfigurement”.
“Serious impairment” is defined as an impairment of a physical or cognitive function that results in a substantial inability to perform: (1) the essential tasks of the plaintiff’s regular employment; (2) the essential tasks of the plaintiff’s training or education program; or (3) the plaintiff’s “normal activities of daily living”. This substantial inability in one of the 3 grounds must also be ongoing since the accident and not expected to improve substantially.
“Normal activities of daily living” is not defined in the legislation and an exhaustive list has not been provided in the jurisprudence. There is room for argument on this point so it is important to keep track of what activities your injuries prevent you from performing.
DISCLAIMER: The publications on this website are intended to provide information of a general nature and not legal advice. The information contained in this publication is current to the date of the publication and may be subject to change following the publication date.