Medical Civil Liability

Compensation

Under review

In medical liability, it is clearly established that the amount granted to a victim must compensate for the loss he or she has sustained and the profit of which he or she has been deprived. Compensation takes the form of capital payable in cash to the victim, unless “otherwise agreed by the parties”.

The damages are paid to compensate for pecuniary losses and non-pecuniary losses.

Non-pecuniary losses include moral injury sustained, pain, suffering and difficulties experienced, as well as the loss of moral support experienced by a family member when the victim dies or is seriously injured. This particular category of damages is one approach adopted by the courts for complete reparation of the injury caused. It is often very difficult  to quantify these losses. Also, in the late 1970s, the Supreme Court of Canada rendered decisions on three leading cases in which it concluded that, barring exceptional circumstances, the maximum that could be granted in this situation should never exceed $100,000. Given the rate of inflation in the last 25 years, the maximum today would be roughly $300,000.

Pecuniary losses include the cost of past and future care, the cost of home adjustments, if applicable, and above all, the loss of the victim’s earning capacity or financial support for a family member. To assess the loss of earning capacity or financial support, one must calculate the sum of money equivalent to the amount the victim would have obtained during his active working life, or the sum equivalent to the portion a family member would have received from the victim. It is up to the first judge who decides on liability to determine the amount, and this is based on expert actuarial analysis presented as evidence by the parties.

Finally, since January 1, 1994, when the judge deems that, at the moment of the ruling, there is not enough information  on the progress of the victim’s physical condition, he or she may grant the victim the right to go to court again for a reassessment of his or her condition and to claim additional damages.

2011-04-04