Birth Injury Cases - Damages

Lawyers start with basic categories of damages in Toronto birth injury cases. On the surface, there are four basic categories: general, aggravated, special, and punitive damages. To best determine the process of recovering damages and have the best chance at recovery, contact a skilled birth injury lawyer as soon as possible.

General Damages

General damages encompass a number of other damages in Toronto birth injury cases. What all these types of damages have in common to be considered within the category of general damages is that they refer to losses that cannot be objectively quantified in terms of money. The first head of damages encompassed under general damages is non-pecuniary general damages. This refers to pain and suffering. For example, if the person is born with a disability that causes the person to experience pain and suffering in their day to day life, it is compensable.

Economic Loss and Future Care Costs

Within general damages, there is another category of damages that is important in these cases which covers, as the overall heading, economic loss. This refers to losses to a person’s earning, future earnings, future earning capacity, and competitive advantage. Basically, it covers a person’s ability to earn a living in the marketplace. This cannot be objectively quantified to the extent that it is forward looking. For that reason, expert opinion is often relevant to predicting and analyzing what those losses on an ongoing basis will be. In certain cases, this refers to a person’s entire lifetime earning capacity.

The other major head of general damages pertains to future care costs. Basically, this refers to all the medical rehabilitative, occupational therapy, and other types of provision that need to be made to compensate the person over the course of their lifetime.

Aggravated Damages

General damages include and are often predicated in relation to the category of aggravated damages, which refers to damages in Toronto birth injury cases awarded in recognition of the fact that the particular type of injury or loss may have an especially adverse or detrimental effect on a plaintiff. Aggravated damages become important in the context of what is called the cap on non-pecuniary general damages. The cap refers to a threshold that limits non-pecuniary general damages, namely damages for pain and suffering, which includes psychological and other subjective types of pain and suffering.

Aggravated damages offer an opportunity for a Court to augment a limited non-pecuniary general damages award that would otherwise be subject to the cap.

Special Damages

The next category of damages in Toronto birth injury cases is special damages. Special damages refer to losses that can be precisely quantified in economic terms up until the time of trial or resolution by way of settlement. Basically, this refers to expenses or out of pocket payments that have been made up until that point. For example, if the child has been in physical therapy for which that child’s parent has been paying out of pocket throughout the course of their child’s life and the case goes to trial when the child in their twenties, all that money that the parents spent as a result of the injury leading up to the resolution of the case is compensable as special damages. Special damages require specific proof. Typically, because this deals with transactions comprising of out of pocket expenses or otherwise, it is how that category of damages is proved.

Punitive Damages

Punitive damages refer to damages that are intended by the courts to punish particularly reprehensible or blameworthy behavior. For example, a child has the right to sue their parents if they sustain a birth injury and the parents are responsible. Consider the scenario of the child born with a birth injury as a result of the mother having sustained harm from someone’s intentional abuse. That abuse represents what is called an intentional tort, not a tort of negligence or omission: an intentionally wrongful act that caused the injury.

Punitive damages will be used by the court to specifically punish that reprehensible behavior. Another example is if a child sustains Fetal Alcohol Syndrome: that child would have a right to sue their mother to the extent that the behavior will be regarded as blameworthy or conduct deserving of censure by the courts. The child’s claim could attract an award of punitive damages. That covers the damages that an individual, namely the birth injured individual, may be entitled to that fall under birth injury.

Family Law Act Damages

A family can also recover in these cases a significant head of damages called Family Law Act damages. Family Law Act damages in Toronto birth injury cases allow for the family members of the birth-injured child to recover both their pecuniary losses as well as non-pecuniary damages for the loss of care, guidance, and companionship:  the loss of the type of relationship one would anticipate with a child of the family within that family over the course of the child’s life. Non-pecuniary losses under the Family Law Act encompass subjective losses of interpersonal relations between family birth-injured status to sue as Family Law Act claimants, namely immediate family members plus grandparents.