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Principal Differences in the Types and Amounts of Damages Recoverable

The types of damages recoverable are largely governed by the laws of individual states and provinces. While the lawyers at Cross Border Law are licensed in Washington State and British Columbia, the legal principles expressed in this article are generally the same throughout the two individual countries.

WRONGFUL DEATH DAMAGES

In British Columbia, the estate of a person killed by the negligent conduct of another, whether by a careless driver or negligent surgeon, is limited to recovering survivorship benefits for the decedent's beneficiaries (in addition to modest funeral and testamentary expenses)-in other words, the spouse and children can recover any amounts that the decedent would have contributed to the household for living expenses. The estate would be unable to recover damages for the decedent's pain and suffering or lifetime earnings.

In Washington, a decedent's estate can recover for many different elements of damages, including pain and suffering before death, fear of imminent death and lifetime earnings less consumption. Immediate family members present at the time and place of injury can also recover emotional damages under the tort of "outrage". Unlike in BC, where the economic damages are limited to the decedent's contributions to the household, the Washington decedent's estate can recover the entire amount that the decedent would have earned over his lifetime less what he would have consumed, reduced to present day value in a lump sum. For an average, middle-aged worker with a college degree, this is easily a seven figure claim.

EMOTIONAL DAMAGES

Although courts in British Columbia are expanding the size of emotional injury awards, these awards are hindered by the "Andrews trilogy", discussed below. Typically, BC judges are careful not to allow personal injury awards to follow the perceived trend of higher US awards. The reality in the US is that certain awards attract significant media attention. The National Center for State Courts,http://www.ncsc.org/, publishes data on the size of civil awards over time and jurisdiction, and reveals that these awards are not as outlandish as perceived. Still, they are more significant than those allowed in British Columbia.

WHIPLASH INJURIES

Notwithstanding my discussion of US jury awards (two paragraphs below), there is one area where damage awards and settlements are consistently higher in British Columbia than in Washington State-soft tissue injuries of the neck and back, commonly referred to as "whiplash". This is the result of the inertia forces in an acceleration/deceleration type injury where a victim's head is jolted forward and back, causing the soft tissues surrounding the vertebrae to stretch and cause pain. Perhaps owing to the fact that pain complaints are largely subjective and cannot be proven with objective medical evidence, jurors in the US typically do not award significant damages for these types of injuries, absent other more physical or emotional type injuries. In British Columbia, where most drivers have insurance and recognize that their insurance premiums pay the damage awards, people have come to expect and even demand that claims be settled or resolved in trial within certain ranges for certain types of injuries.

CAPS ON NON-ECONOMIC DAMAGES

In Canada, the size of judgments and settlements for personal injury is hindered by a court-imposed cap on such damages knows as the "Andrews trilogy". This refers to a series of three cases in which the Supreme Court of Canada established an outer range for the damages awardable for pain and suffering for a catastrophic injury such as traumatic brain injury or quadriplegia. In 2010 dollars, that outer limit is approximately CAD $325,000. While the court discussed the possibility that a case might be presented that commands an award above that range, it would have to be a significant case. Awards for lesser injuries would then be scaled down from that amount, such that a mild whiplash type injury might garner damages in the $25,000 to $45,000 range (pain and suffering component only), while a significant orthopedic injury involving surgery might fetch a settlement or judgment of $160,000 to $240,000, depending on the specific circumstances.

In the US, where most personal injury cases are decided by juries, there is a significant disparity between the low end and high end of damages awards. Each particular case rests on its own individual facts and circumstances, and a lawyer's job is to convey who the client was before an accident or injury, and what limitations or disabilities he or she has had to suffer because of the defendant's negligence.

When I'm in trial, I rarely ask the jurors to award a specific sum of money for physical and emotional injuries. Rather, I ask them to apply their own common sense to the plight of my clients and come up with an award they can be proud of. The trial is the one shot my clients have to receive compensation for their injuries-compensation that may have to last a lifetime, and I spend a lot of time making sure jurors appreciate that. Fortunately, the juror pool in Washington is a good one-full of people who appreciate the value of health and happiness, who are educated and hard-working. When clients demonstrate those qualities, jurors identify with them and compensate them accordingly.

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