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Motor Vehicle Accident - Cap on Damages

Victor Lewin - Wednesday, July 29, 2015

You may have heard about a cap on damage awards for motor vehicle accidents. You may be wondering whether your injuries are capped. You may even be wondering what you can get for a capped injury.

In 2010 the law dealing with motor vehicle accidents was amended and the legislation on minor injuries was changed. The definition of a minor injury changed as well as the amount for these injuries. These are important changes and may play a significant part in your claim.

Definition of Minor Injury

The definition of a minor injury has changed. Under the previous legislation the cap applied to all injuries. This is not the case anymore. The minor injury legislation applies only to strains, sprains and whiplash injury. The legislation includes the following definitions:

"sprain" means an injury to one or more tendons, to one or more ligaments, or to both tendons and ligaments;

"strain" means an injury to one or more muscles;

"whiplash-associated disorder injury" means a whiplash-associated disorder other than one that exhibits one or all of the following:

(i) neurological signs that are objective, demonstrable, definable and clinically relevant,

(ii) a fracture to the spine or a dislocation of the spine.

So if you suffer a fracture, concussion or neurological injury, you injury does not fall within the cap.

If your injury is a strain, sprain or whiplash injury, in order to get outside the cap, you must show that your injury has resulted in a serious impairment. A serious impairment is also defined by the legislation. It is an impairment that results in a substantial inability to perform the essential elements of your employment, the essential task of your education or schooling, OR the normal activities of your daily living. It is important to note that you must only show an impairment in one of the categories, i.e. you may continue to work but be unable to perform regular household tasks or your usual daily activities.

In determining whether you are able to perform the essential elements of your employment, you must look at your "regular" employment, i.e. the job you had at the time of the accident. Are you able to do the core aspects of your job? Your employer is also required to accommodate you if possible. If you can show that even wit accommodation from your employer, you are still unable to perform the core duties of your employment as a result of your injuries, you will fall outside the cap.

If you are enrolled in schooling or have been accepted into an education or training program at the time of the accident, the determination of whether or not your injuries are minor injuries may depend on your ability to engage in the essential tasks of your education or schooling. Again, you must look at what the core requirements of your education, schooling or training are and determine whether, as a result of your injuries, you are unable to perform these requirements.

The third category refers to the normal activities of your daily living. There are a number of things this category includes. The Courts have determined that what is considered a normal activity of daily living depends on the individual and includes things such as personal care, housework, child care and exercise all fall within this category.

In addition to showing a serious impairment, you must also show that the impairment has been ongoing since the accident, and that the impairment is expected not to improve substantially. Medical documentation can be relied upon to support these two requirements.

There are a number of things to keep in mind. The minor injury cap only applies to general damages (i.e. pain and suffering). It does not affect your claim for income loss, out of pocket expenses, and other losses incurred as a result of the accident. Also, the cap is indexed for inflation.

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