The Test For Non-Pecuniary Damages (general damages)
Under s.267.5 (5) of the Insurance Act, a personal injury claim for non-pecuniary damages or general damages (eg. Damages for pain and suffering, loss of enjoyment of life, etc.) suffered in a motor vehicle accident can only be pursued if it meets the following three part test:
The injured person must have sustained a permanent impairment of a physical, mental or psychological function;
The function which is permanently impaired must be an important one;
The impairment of the important function must be serious.
The individual parts of this test have been further defined by case law as follows.
1. PERMANENCE
The courts have established the following two statements to define whether an injury is permanent:
a) Permanent means lasting indefinitely into the future as opposed to a limited time with a definite end.
or
b) The permanent requirement is also met when a limitation in function is unlikely to improve for the indefinite future.
Essentially a claimant will meet this test if his/her injuries are not expected to fully heal in the foreseeable future.
2. IMPORTANCE
The importance of the impairment caused by the injury is decided by the court on a case by case basis. The court looks at the effect that the injury has on the claimant's everyday life. If the injury affects functions that the claimant performs on a daily basis (i.e. running, walking, sitting, lifting objects, sleeping, etc.) then it is likely that the court will conclude that the impaired function is important.
3. SERIOUSNESS
The court also determines seriousness on a case by case basis. The court looks at the severity of the claimant's injury and how significantly the injury affects the claimant's enjoyment of his/her life.
The court examines whether the pain and dysfunction experienced by the claimant go beyond being simply frustrating and unpleasant, and whether the interference with enjoyment of life goes beyond being tolerable.
The requirement of seriousness may be satisfied even when a claimant goes back to work and resumes household responsibilities, if the claimant continues to experience pain while doing so. In such cases, the court will also look at whether the continuing pain affects the claimant's enjoyment of life, social activities, intimate relations, child care activities and recreational pursuits.
In general, if you have suffered an injury in a car accident that is having a significant ongoing effect on your life, and where your doctors expect the injury to persist for an indeterminate amount of time, it is likely that you will satisfy the above 3-part test for a claim for non-pecuniary damages.