For better or worse, our legal system is largely about money and property. When someone is wronged, it is rare for a court to award anything other than money. If you rear-end someone and he or she suffers whiplash, the court will not force you to apologize, help them carry their groceries home, or rub A535 on their sore neck. The court will make you (which usually means your insurance provider) give the plaintiff some money.
Lawsuits are meant to be restorative. In a tort case, the court seeks to put you back to the position you were in before you were wronged. In a contract case, the court seeks to put you in the position you would be in if the contract was performed.
In practice, this is obviously impossible. The court cannot undo a breached contract and it cannot teleport you back to a time when you were not injured. Instead, the court makes their best effort by awarding damages (read: money).
Some cultures and legal systems focus less on money and more on a potentially more complete form of restoration where everyone affected by the wrongdoing can participate in a process to discuss the harm and decide what should be done to repair it. There are elements of restorative justice interwoven into Canadian law, but the primary approach, particularly in civil litigation, is still based on money.
There are numerous different reasons for the court to award money to someone who has been wronged. If you had to miss work or change jobs, then you may be entitled to money for lost income.
You may even be entitled to money for lost income that you’ve yet to actually lose. For instance, if you are not able to work for the rest of your days, then you will be entitled to all of the money that you would have earned but for the accident, which in some cases means a lot of money.
If you spent money you otherwise wouldn’t have, then you may be able to recover it. For example, if you break your leg, then you can claim the cost of your crutches and pain medication. If your landlord wrongfully locks you out of your home, then you can claim the cost of a hotel. The same is true for money you will need to spend in the future.
If you cannot do your household chores because you’ve been injured, then the court may award you money spent on hiring people to help you out. The court may even award you damages if family members did the work for free out of the recognition that unpaid work has monetary value, which is a historically important recognition for women.
Non-pecuniary damages, or damages for “pain and suffering”, are awarded in tort cases in an attempt to comfort for victims. The court will assess the severity of your injuries: how physically, psychologically or emotionally hurtful are they? Did they prevent you from doing the things you like to do? How did they impact your relationships?
Word to the wise: Canada is different than the United States when it comes to pain and suffering damages. Our awards are generally much smaller. In fact, in order to avoid extravagant awards like those found in the U.S., the Supreme Court of Canada instituted a cap on pain and suffering damages for instances of catastrophic personal injury, which currently sits around $320,000 when adjusted for inflation.
Everyone who suffers a wrong also has an obligation to mitigate her or his damages, meaning you have to take measures to minimize your losses. For instance, if your boss fires you without good reason, then you have to look for work. If you hurt your back in a slip and fall, then you likely have to attend physical therapy and follow an exercise plan. If you don’t mitigate your damages, then the court will reduce how much money you’re awarded.
Damages are assessed by referring to precedents established in prior case law. This means that the court looks at what other people with similar injuries and experiences have been awarded and tries to give you a similar amount. You can search for similar cases for free on the CanLII website.
No doubt, the law provides avenues for people who are wronged to be awarded money by the wrongdoer (or the wrongdoer’s insurance company). That does not mean you should start a lawsuit. Lawsuits can be expensive, stressful, time-consuming monsters. In the next column on civil litigation, Kevin Yee will talk about some things that you should take into account when deciding whether to start a lawsuit.
Joseph Fearon is a civil litigation lawyer at Stevens Virgin practising in the areas of personal injury and commercial litigation. Reasonable Doubt appears on Straight.com on Fridays. You can send your questions for the column to its writers at email@example.com.
A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.