Abolish The Pain and Suffering Damages Cap

This blog post by Duncan Macgillivray was originally featured on the Ontario Trial Lawyers Association Blog on May 31, 2017.

Back in 1978, the Supreme Court of Canada set an upper limit or “cap” on pain and suffering damages in Andrews v. Grand & Toy Alberta Ltd. J.A. Andrews was only 21 when he was rendered quadriplegic from a motor vehicle collision. The Court wrote that “It is difficult to conceive of a person of his age losing more than Andrews has lost.” He was ultimately awarded $100,000 for his pain and suffering.

Andrews’ $100,000 became the upper limit on pain and suffering awards in Canada. With inflation, that $100,000 limit is now valued at about $366,000.

In coming to their conclusion to limit pain and suffering damages, the Court focused on the “paramountcy” of damages for future care and medical treatment (as opposed to pain and suffering, which the Court believed was more difficult to calculate).

The Court also focused on the need for predictability in damages and worried about “widely extravagant claims”.

Now, almost 40 years later, this cap should be revisited and abolished.

Aside from the fact that we now live in a world that is more sensitive to a person’s pain and suffering, there are other good reasons to abolish the pain and suffering damages cap:

  1. Other general damages, like damages for defamation, have no such cap. So, you can be awarded more for the loss of your reputation than you can for the loss of use of your limbs.
  2. For motor vehicle collisions, there are additional insurance deductibles on pain and suffering awards. As a result, victims are struck first with this damages cap and then by a large insurance deductible. Making matters worse, the jury is not allowed to be told about the insurance deductible and often cannot factor this into their decisions.
  3. Pain and suffering damages can be calculated in a more objective and quantifiable way. The calculations do not have to be a “philosophical and policy exercise more than a legal or logical one,” as the Supreme Court put it. In the United States, pain and suffering damages are not capped, and juries are sometimes asked to value pain and suffering in ways that are quite logical:
    • A jury can put an hourly value on the pain and suffering and calculate it over a lifetime.
    • The jury can use a multiple of the economic damages – as losses to health, independence, and quality of life often pale in comparison to the economic losses.

Either of those methods of calculation provide a more objective, logical, and fair value of pain and suffering – much more objective, logical, and fair than saying: “Andrews used to be a healthy young man, athletically active and socially congenial.  Now he is a cripple, deprived of life’s pleasures and subject to indefinite pain and disability”, and then awarding $100,000 (or $366,000).

Despite the challenges in calculating damages and concerns about predictability, should a just and caring society tell a quadriplegic “Your pain is only worth $366,000”? Presently, that is exactly what we have to tell our clients.

Note: With inflation, the cap is now $392,300 (as of December 2020).