What is Non-Pecuniary Loss?
Non-pecuniary loss encompasses pain and suffering, loss of enjoyment of life, loss of amenities (e.g. the ability to walk), and loss of life expectancy. None of these consequences can be valued in monetary terms, and so a non-pecuniary award can never provide true ‘compensation’. Recognizing this, the courts have decided that non-pecuniary loss should be based on the “functional approach”: in what ways has the accident limited you from living and enjoy your life?
The following factors are relevant under the functional approach:
- age of the plaintiff;
- nature of the injury;
- severity and duration of pain;
- emotional suffering;
- loss or impairment of life;
- impairment of family, marital and social relationships;
- impairment of physical and mental abilities;
- loss of lifestyle; and
- the plaintiff’s stoicism (as a factor that should not penalize the plaintiff).
Once the evidence on those factors has been considered, the court will look for other cases where the plaintiff suffered similar consequences. The non-pecuniary loss is based on the awards in those cases.
The Maximum Award for Non-Pecunary Loss
About 35 years ago, the Supreme Court of Canada established a ‘cap’ for non-pecuniary awards of $100,000. The court was influenced by the enormous pain and suffering awards reported in the United States. Since then the ‘cap’ has been adjusted for inflation, and it is currently around $350,000 as of 2013. Canadian courts cannot award any more than this for non-pecuniary damages. Furthermore, only the most severe injuries qualify for the maximum award, usually significant brain damage or paralysis.