An injury is catastrophic if it permanently prevents a sufferer from maintaining employment. This may include traumatic brain injuries, the loss of use of multiple limbs, spinal injuries causing para- or quadriplegia, and in extreme cases, brain and behavioural disorders. Catastrophic is also a term defined in the Ontario Insurance Act, and if you have been insured in a car accident and you meet that definition, you will have access to larger amounts of “no fault” benefits.
Catastrophic injuries can come about in many ways, such as automobile accidents or medical malpractice, but they tend to fall under the umbrella of negligence law.
For example, causing an accident from driving while impaired or using a cell phone would be considered negligent, and the driver would be responsible for the injuries caused.
The case of JJ v CC, 2016 ONCA 718 (CanLII) addresses some of the complexities and surprising ways that liability can result in motor vehicle cases. In this case, the plaintiff and defendant were two 15-year-old boys involved in a car accident that left “JJ” with a catastrophic brain injury.
The two boys had been drinking, having started the night with beer purchased by one of their mothers, moving on to vodka, and eventually, wandering about, attempting to take things from unlocked cars. When the boys found a car in a mechanic’s shop that was unlocked with the keys inside, they took it for a joyride; however, they crashed on the way to pick up a friend, leaving one of the boys catastrophically injured.
In this case, the garage owner was held 37 percent liable for the plaintiff’s losses, the other boy’s mother was liable for 30 percent, and the remaining 33 percent loss was deemed the boys’ fault. It was seen that the garage owner’s longstanding practice of keeping cars on his property for a commercial purpose meant he could be required to do so with a view to the public’s safety.
“Special damages” are compensation for the financial costs of an injury, such as lost earnings before and after trial, the costs of medical care, and/or transportation. Courts attempt to ensure that the financial burden falls on the party at fault and not the victim.
When catastrophic injuries occur, “special damages” are particularly important, as they are necessary to compensate victims for what could otherwise have been a lifetime of earnings. Additionally, medical bills and other costs of care, such as mobility assistants or revamping a home or vehicle, will add up significantly.
General damages reflect the impact that injuries will have on the quality of life of victims, considering pain, suffering, and decreased enjoyment of life before trial and into the future. In 1978, the Supreme Court of Canada capped damages for pain and suffering, which have now grown to $340,000 (through inflation). The court held that money could never really compensate for suffering in catastrophic cases, and so could not be properly assessed, but damages could make life more livable.
In the case of a serious injury or death, it is possible for family members of the victim to receive compensation for the loss of the “guidance, care, and companionship” of the injured person. If a family member suffers a catastrophic injury, this loss should be discussed with your lawyer to consider what compensation may be available to family members.
A personal injury lawyer will be able to assess whether the settlement discussions are reasonable or if your case should proceed to court.
In Kwok v Abecassis, 2017 ONSC 164 (CanLII), Mr. Kwok’s lawyer recommended that he go to court to obtain fair compensation. Mr. Kwok, who was 50 years old then, had swerved out of the way of an unidentified vehicle but got struck by Mr. Abecassis. Because only one defendant could be identified, that defendant (Mr. Abecassis’ insurer) was held liable for 100 percent of the damages.
Mr. Kwok was fundamentally changed by the accident; his mood, personality, and mental capacity were altered. The crash reduced his lifespan by about seven and a half years and he also resultantly suffered from Post-Traumatic Stress Disorder. Mr. Kwok was awarded over $2.6 million for his losses, a large portion of which was for his attendant care. This case provides a sense of the size of catastrophic injury judgments, even with a plaintiff nearing retirement age.
If you or a loved one were catastrophically injured in an accident, our lawyers in Ajax or Whitby can meet with you and assess your unique case. We can discuss liability, damages and the procedural issues as well. Call us to arrange your free consultation at 905-579-5302.