As some already know, the damage suffered is one of the three essential elements to prove when claiming compensation for damage in civil liability. After all, this is the very raison d’être of civil liability, since it is the same damage that civil liability is trying to compensate.
However, how does the judge assess the damage suffered by the victim, and consequently the amount that may be compensated? In fact, when assessing the extent of compensable damage, it is first important to separate each loss into two broad categories, or heads, of damages: pecuniary losses, consisting of loss of wages and losses in cost of care, and non-pecuniary losses.
Monetary losses
First, we find the costs related to past and future medical care provided to the victim of the accident. This head of damage includes all kinds of expenses, including, among others, ambulance transportation, medical expenses, alternative medicine costs (kinesiology, physiotherapy, etc.) and even the cost of prostheses. In addition, the victim of bodily injury has the right to be compensated for any expenses related to his social reintegration and his return to his home. Thus, compensation may be compensated, among other things, for any expenses aimed at making the victim’s housing more accessible (e.g. ramp, lowered counters, widened corridors), as well as the costs of hiring a medical assistant at home. In short, any expense directly or similarly related to the medical treatment of the victim is likely to be included under this head of damages.
Then, it is also possible to be compensated for any loss of income caused by the damage in question. From the outset, any wage losses suffered at the time of the trial are compensable, for example, when the victim is forced to miss one or more days of work due to a medical intervention, a work stoppage prescribed by the doctor, etc. However, it is also possible to obtain compensation for any future loss of income in cases where the injuries suffered by the victim completely prevent his or her reintegration into the world of work.
Together, these last two counts of damages form the losses of a pecuniary nature, that is to say, financial, quantifiable, attributable to bodily injury. As a general rule, any reasonable expense falling under the scope of pecuniary damages is recoverable provided that there is a direct and definite link between the damage suffered and the expense in question, regardless of the amount of the total.
Non-pecuniary losses
Finally, the second count of compensable damages, the category of non-pecuniary losses, includes any damage affecting the quality of life or esteem of the victim. We think, for example, of physical pain or suffering, loss of autonomy, the complex caused by a scar or even the fact that they can no longer engage in daily activities (e.g. playing sports, cooking, going shopping, etc.) In short, it is all the moral or psychological consequences suffered by the victim as a result of his accident. However, due to their highly subjective nature, it is very difficult, if not impossible, to adequately quantify non-pecuniary damages, not to mention the significant risk of abuse of this remedy in the absence of precise guidelines. Nevertheless, it remains necessary to find a method to assess these losses, in this case, using the D.A.P.
Anatomophysiological deficit (D.A.P.)
At the outset, it should be remembered that each case has its own facts, and therefore, different criteria can be used from one case to another to establish the quantum of compensation. However, the Superior Court generally admits an amount whose ratio is $10,000 per percentage point of the D.A.P retained. In fact, anatomophysiological deficiency (A.D.A.P.) is a ratio expressed as a percentage and established by medical evidence that reflects to the judge the extent or objective severity of the injuries or limitations suffered by the victim.
For example, the medical evidence equates a young man’s head-first fall into the bottom of a lake resulting in serious injuries to the cervical spine with a D.A.P. of 6.5%. Thus, it is with the help of this data, as well as other subjective factors, specific to each victim, in particular his age, his level of activity before the accident and the activities that the victim will no longer be able to practice, that the judge quantifies the amount compensable in the present case. For example, more compensation should be paid for the same damage when it permanently affects a young victim, who should theoretically have every conceivable career choice at his disposal. Similarly, it makes sense to compensate a victim with a particularly active lifestyle who is deprived of the daily pleasures of physical activity for the same harm.
In short, each victim receives the right amount as compensation, depending on the severity with which the accident in question affected his life, both objectively and subjectively. However, unlike losses of a pecuniary nature, there is a limit amount that can be awarded as compensation for non-pecuniary damage. In 1978, the Supreme Court set a ceiling of $100,000, annexable to the current year, on compensation awarded for non-pecuniary damages. This amount corresponds to approximately $360,000 as of 2019.
Sharing responsibility
On another note, it is also important to note that a sharing of responsibility can ultimately be declared when the victim is found to have contributed to his or her own harm. In this case, the victim will have to assume himself a percentage of the compensation to which he would normally be entitled.
One thinks, for example, of the one who agrees to remove snow from the roof of his neighbor, a clearly risky operation, while omitting however to bring any safety measures to prevent a potential fall (belt, harness, etc.). In this case, a 50% split was imputed to the victim of the accident, but it should be clarified that the extent of the sharing is determined for each case according to the facts in the case. Thus, the more the victim participates in his own misfortune, the more sharing will tend to work against him.
To conclude, in order to assess the amount to which the victim would be entitled as civil liability compensation, it is necessary to sum the pecuniary losses (wage losses and medical care) and non-pecuniary losses (depending on the D.A.P. and many factors specific to the victim) retained by the judge. However, an amount may be deducted from this sum on proof of the victim’s manifest participation in his own misfortune. In short, we note that several factors are likely to come into play when it comes to assessing a bodily injury in civil liability.
If you have suffered damage due to an unfortunate accident, do not hesitate to contact our firm.