How Courts Assess General Damages

Understanding how courts assess general damages begins with what the award is for. General damages pay for pain and for the enjoyment of life an injury took away. Nothing in that can be totalled from receipts, so a judge in Atlantic Canada fixes the figure by reading what other courts awarded for comparable injuries and then adjusting for the person in the courtroom.

How Courts Assess General Damages Case by Case

The Supreme Court of Canada calls this the functional approach. The question is not what an injury is worth on an open market. The question is what sum will provide reasonable solace to this plaintiff for what this injury has cost them. Two people who break the same bone can receive very different awards, because the fracture interrupted very different lives. The reasoning behind that approach comes from the 1978 trilogy set out in the supreme court cap chapter.

Comparable Cases Set the Working Range

Counsel on both sides file a brief of decided cases. Each side argues that its cases are the closer match on severity and duration. The judge takes a range from those authorities and places the plaintiff inside it. Decisions from the province of trial carry the most weight and decisions from elsewhere in Canada are persuasive. Reported Atlantic Canadian decisions are searchable on CanLII.

The Factors That Move the Figure

Severity and permanence do most of the work. After that come the plaintiff’s age, the effect on work and family life, the pain that treatment itself involves, and whether the prognosis is settled or still open. A pre-existing problem can reduce the award, and the pre-existing conditions chapter explains when. Where several injuries overlap the court gives one global figure, as the multiple injuries chapter describes.

What the Evidence Has to Show

An assessment rests on medical evidence about the injury and lay evidence about the life. Clinical records and specialist reports establish the first. Family members and co-workers who knew the plaintiff before the injury establish the second. Where the two disagree the court usually prefers the contemporaneous record, which is why the medical records chapter matters to the number.

Where the Assessment Sits in the Claim

General damages are one head among several, and in a serious file the pecuniary heads can be larger. The firm builds the comparison brief and the lay evidence on car accident and other injury claims, and works with no fee unless the claim resolves. The rest of the series is mapped in the guide’s opening chapter.