Personal Injury: A Guide to Damages and Compensation
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Back In February, this blog detailed the proper steps to take after an injury to make sure you can receive the highest compensation you deserve. Here, we will break down the different types of compensation you may be entitled to. The monetary amount you are awarded in personal injury cases is also known as “damages”. The modern approach to assessing personal injury damages stems from three landmark Supreme Court of Canada decisions often referred to as the “Trilogy”. The leading case from this Trilogy is Andrews v Grand & Toy Alberta Ltd, [1978] 2 SCR 229.
Generally, there are two categories of damages: Non-Pecuniary and Pecuniary. Andrews pioneered the Canadian Courts current analysis on Non-Pecuniary damages.
Non-Pecuniary Damages
Non-pecuniary damages are also known as “pain and suffering” and “general” damages. These damages are not necessarily quantifiable, and the amount awarded is in the discretion of the Courts depending on the injuries suffered and the impact on your life. Non-pecuniary damages encompass general pain, loss of enjoyment of life, and loss of amenities. Alberta courts also tend to follow British Columbia decisions when assessing non-pecuniary damages and look at factors such as the injured person’s age, lifestyle, credibility, and mental impacts from the injuries. For example, Brad, a 20-year-old, is injured in a motor vehicle collision. Brad is physically active and plays both football and hockey. Brad is assessed with a moderate traumatic brain injury and severe whiplash and can no longer play football or hockey for the rest of his life. The courts will weigh give these factors significant weight when assessing non-pecuniary damages. Brad is more likely to receive a higher amount of non-pecuniary damages for the same injury then say a 45-year-old who is not physically active.
The Andrews case also established the overarching goal of awarding non-pecuniary damages is to put the injured person back to where they were prior to the injury. The idea is that money is a strong enough alternative to bring a person some comfort and support for their injuries, but that money can never make them whole again. Andrews is also known for creating a maximum cap of non-pecuniary damages that an injured person may seek. This cap was $100,000.00 back in 1978, which adjusted for inflation would total approximately $450,000.00 today. This maximum cap is limited to severely debilitating injuries such as total loss of mobility or a severe traumatic brain injury causing extensive neurological damage. It is also important to note that the Courts do look at relevant pre-existing injuries when calculating non-pecuniary damages.
Pecuniary Damages
Pecuniary damages are generally quantifiable damages and typically fall into different categories.
Loss of Income
Loss of income is one of the simpler categories of pecuniary damages to calculate. It is calculated by taking your pay and applying it to the amount of time you missed work due to your injuries. This category assesses your pay stubs, bonuses, and other forms of compensation to calculate what you are owed from the date you were injured until you can return to work.
Future Loss of Earning Capacity
This category is much more complicated than loss of income and requires the Courts to look ahead to the future to assess the hypothetical earning potential of a person. The Alberta case Meehan v Holt, 2010 ABQB 287 summarized the test:
When a plaintiff suffers an injury which reduces his or her capacity to earn an income, a capital asset has been diminished. For this a plaintiff must be compensated. Loss of capacity must be established as a reasonable possibility and not as mere speculation.
For example, say Joe was working a manual labour job in the oil and gas sector up north. Joe has been working this job for 3 years and is now making $100,000.00 per year. Joe is in line to receive a promotion soon. Joe is then severely injured in an accident and can no longer perform manual labour and he is relegated to working a non-labour job making $40,000.00 per year for the rest of their life. This example is a little extreme but these types of cases do happen regularly.
In this example, the Courts would assess Joe’s future loss of earning capacity by calculating his earning potential for the rest of his career in the manual labour job and measuring it against potential adverse effects if he were to continue in that career. Adverse effects here would be things such as the likelihood you would be injured at work and being laid off. His earning potential would be measured by his likelihood of moving up the ladder in his company and estimating what his potential salary would be years down the road. From there, the assessment weighs it against Joe’s current employment to estimate what his future earning capacity would have been but for the injuries.
Loss of Housekeeping Capacity
Loss of housekeeping capacity assesses a person’s ability (or inability) to perform basic household chores including cooking, cleaning, laundry, yard work, and dishes. This category recognizes that performing these housekeeping tasks have a basic economic value and that compensation is deserved if an injured person’s ability to accomplish these tasks is impacted.
Loss of housekeeping capacity can be calculated for both the past and future depending on the severity of the injury. Alberta courts have often used $25.00/hr to calculate loss of housekeeping capacity and look at evidence of whether a family member has had to perform the majority of the chores or if the injured person has hired outside help.
Cost of Future Care
This category again looks to the future to determine how much care an injured person will continue to need. Generally, this category has to do with ongoing treatment expenses such as physiotherapy or a need for attendant care. The claim for cost of future care can increase dramatically if someone suffers severe and/or debilitating injuries. This category can also be applied to the past, if say a family member takes care of an injured person which can assist in determining the future care amount. Past cost of future care where a family member is assisting in the care of an injured person is also known as an “In Trust Claim”. In trust claims are generally rarer to claim in damages than cost of future care.
Special Damages
Special damages are direct out-of-pocket expenses an injured person has paid due to the accident. Examples include parking at clinics, mileage for travel to medical appointments, medication, and home care items such as crutches. It is important to keep and organize all these receipts if you are injured as they are compensable.
Costs and Disbursements
This is the final category of pecuniary damages that are generally claimed. These include compensable costs to offset legal fees and the disbursement costs incurred throughout the Court action. Disbursements include the expenses incurred by your lawyer to receive documents on your behalf such as medical expert reports.
Minor Injury Cap
Back in 2004, Alberta created a Minor Injury Regulation that puts a cap on soft tissue injuries such as sprains, strains, and whiplash suffered from motor vehicle collisions. These soft tissue injuries can go beyond the minor injury cap – and oftentimes they do – but are considered minor if there is no serious impairment. In 2025, the minor injury cap was assessed at $6,182.00, a 2% increase from 2024. The cap in 2026 is likely to increase a slightly from 2025’s.
Alberta’s Move to No-Fault Insurance
On May 15, 2025, The Automobile Insurance Act received royal assent and is planned to be implemented on January 1, 2027. Under this new scheme auto insurance becomes “no-fault” which will severely limit an injured person’s ability to sue an at fault driver for his or her injuries in motor vehicle accidents. This will most likely directly impact one’s claim for non-pecuniary damages. We won’t truly know the full impact of this new scheme until it is implemented in 2027, but for 2026 the normal rules will apply and will continue to apply to non-motor vehicle accident injury cases such as slip and falls, medical malpractice, assault and battery, animal attacks, and recreational injuries.
Note: This article provides general commentary and is in no way intended to replace the need to consult with a legal professional concerning the specific circumstances of your situation. This article should not be construed or relied upon as legal advice.
