In 2004, the Alberta government introduced a piece of legislation called the Alberta Minor Injury Regulation, which placed a cap on the compensation available to an individual who sustained minor injuries in a motor vehicle accident (the “Cap”). This bold move was taken in an attempt to balance the rights of injured victims, with the increasing costs of providing and purchasing insurance. In the years prior to the introduction of the Cap, insurance companies lobbied the government for a change, arguing that, as a result of an increase in personal injury claims and subsequently, a spike in their costs to settle these claims, they had no choice but to increase insurance premiums. The insurance companies promised the government that by limiting the money that goes to injured Albertans by putting a cap on payouts for “minor injuries”, that they could reduce their own costs and consequently, lower insurance premiums to the general public. This scheme proved successful, and the Cap was created.
The reality of it is however, that the Cap may have been successful in decreasing the amount of personal injury claims in Alberta, and therefore, saving the insurance companies some money, however, the idea of lower premiums for average Albertans has remained a fallacy. Further, the creation of the Cap has denied thousands of legitimately injured Albertans the compensation they would otherwise be entitled to.
In 2004, the minor injury cap was set at $4,000.00. The law adjusts the Cap every year to account for inflation, and as of 2023, it sits at $5,817.
What is a Minor Injury?
In the Minor Injury Regulation, a minor injury is defined as a sprain, strain, or WAD injury (whiplash associated disorder) caused by a motor vehicle accident, that does not result in a serious impairment. This definition is confusing, broad, and complex. Without the guidance of a personal injury lawyer, it can and likely will be used against you.
What is a “Serious Impairment”?
A sprain, strain, or WAD injury, will not be considered “minor” and will not fall subject to the Cap, if it renders you unable to perform the essential tasks or activities of your daily life, employment, or of an education or training program. This “serious impairment” must not be expected to “improve substantially” and must also continue for six or more months from the date of the accident. If these criteria are met, it is likely that you are suffering from a serious impairment.
What does this mean for me?
If you were injured in an accident in Alberta, and you were not at fault, then you are entitled to make a claim for compensation against the at-fault party. The compensation you can claim for falls into two categories: 1) general damages, and 2) special damages. General damages is the legal term for the compensation you get for your pain and suffering, which accounts for all of the injuries you cannot put a price tag on. Special damages, on the other hand, are things that you can easily calculate, such as: out-of-pocket medical expenses or the income you lost because of an inability to work.
The Cap only applies to the pain and suffering portion of your claim. In other words, if you suffer from a minor injury, and are subject to the Cap, the most you can sue the at-fault party for, is $5,817, for your pain and suffering. The Cap does not apply to special damages, such as the ones mentioned above.
Why do I need a Personal Injury Lawyer?
At Braithwaite Boyle, we have dealt with thousands of cases in which an insurance adjuster or opposing counsel will claim that our client’s claim is capped, when it is in fact, not.
Every single day, we receive calls from individuals who were informed by an insurance adjuster that their claim is capped. More often than not, they are wrong.
There remains a great deal of misinformation surrounding the Cap, which is constantly perpetuated by insurance companies whose main goal is to limit the amount of settlements to Injured Albertans.
Only an experienced personal injury lawyer can help you obtain the compensation you deserve when you are injured in an accident.
How Will The Minor Injury Cap Increase Affect You?
The new cap for pain and suffering damages due to minor injuries incurred from an automobile accident in 2023 is $5,817. This is a 1.2 percent increase from the previous year, as per Alberta’s Minor Injury Regulations, which mandate that the cap is to increase each year in accordance with inflation. The cap on pain and suffering damages for minor injuries was originally set at $4,000 in 2004.
What Defines a “Minor Injury”?
Unfortunately, the definition of “minor injury” pursuant to the regulations is, in some ways, anything but clear. The Minor Injury Regulation, made under the Insurance Act, defines a minor injury as a sprain, strain or WAD injury that does not result in “serious impairment”. A WAD injury is then defined as whiplash-associated disorder that does not exhibit either: (i) objective, demonstrable, definable and clinically relevant neurological signs, or (ii) a fracture to or a dislocation of the spine. The definition of “serious impairment” is rather lengthy but makes reference to the extent to which an injury hinders or prohibits a person from performing the tasks of his or her employment, and activities of daily living (examples include hygiene tasks, getting around, grocery shopping).
Other Relief Is Available
It should be noted that despite the cap, other relief is available to victims of minor injuries. The cap only applies to damages for pain and suffering — monetary compensation that is actually “unquantifiable”, also referred to as non-pecuniary or general damages. Injury victims are still able to claim compensation for medical expenses and income loss through Alberta’s no-fault accident benefits scheme. Where the maximum available under that scheme is insufficient to fully compensate the victim, the victim may also commence litigation against the third party driver (if they are at fault) in relation to remaining losses. Often, income loss benefits are insufficient to cover lost salary (the maximum available is $400/week), however medical benefits available under the no-fault scheme are capped at $50,000, which is sufficient to cover most minor injury victims.
How the Cap Could Impact Compensation
It is interesting to see how the implementation of the cap for pain and suffering damages has affected awards in court. For example, in the pre-cap decision Onofriechuk v. Dolman, 1998 ABQB 148, the plaintiff was awarded $16,000 for what the presiding judge held to be a “mild to moderate whiplash injury”. Taking into account inflation, this award would be over $20,000 in today’s money. Based on the facts of the case, it is arguable that today, this injury would be deemed to be a “minor injury” under the Minor Injury Regulations and would be capped at $5,080. This particular plaintiff did not claim for any medical or income loss damages. For some, the stresses of litigation may not be worth taking such a case to trial. However, as above, many cases settle prior to trial, with the help of a lawyer.
Similarly, in the pre-cap decision Martorana v. Lee, 1994 CanLII 8930 (AB QB), the presiding judge awarded the plaintiff $30,000 for pain and suffering, which would be between $35,000-$40,000 today. Like in the case above, the judge found that the plaintiff’s injury (in this case, a sprain of the neck and spine) was only mild to moderate, and that the injuries could have been expected to resolve in a finite period of time. The plaintiff in this case also suffered knee strain. Again, it is plausible that such injuries would now fall under the Minor Injury Regulation and be capped at $5,080. In this case, the plaintiff was awarded over $43,000 in income loss. In such a case, it would likely still make sense to litigate, under today’s regulations.
Should You Pursue a Lawsuit?
The new cap is designed to encourage you as the victim of a “minor injury” to assess whether it is worthwhile to pursue litigation against an at-fault driver. What is difficult to determine is whether an injury that first appears to be minor could later be more problematic for you.
Further, as above, the cap on pain and suffering damages is not the only compensation available; amounts may be available for measurable losses, such as medical treatments and loss of income from missing work. Of course, if an injury is found to be minor, the total amounts that courts will find to be reasonable for medical expenses and time off work will necessarily be less.
In deciding whether to pursue litigation, keep in mind the litigation process, which a personal injury lawyer can handle for you. At Braithwaite Boyle Accident Injury Law, we work on a contingency fee basis, which means we only charge fees if and when we obtain compensation for you. Consulting with us can help you decide whether litigation is for you, taking into account the specifics of your case.
The New Cap For Pain & Suffering Damages For Minor Injuries – What You Need To Know
In the context of minor injuries incurred from an automobile accident, $5,080 is the new maximum amount that can be claimed for non-pecuniary damages (pain and suffering) in Alberta, effective January 1, 2018. This cap was adjusted upwards by 1.2%, from $5,020 in 2017. The cap applies where the accident giving rise to the injuries occurred on or after January 1, 2018; the cap is not based on when a claim is actually filed with the courts.
When Did the Cap Start & Why?
Legislation capping damages available for pain and suffering, in the event of minor injuries incurred in an automobile accident, came into effect in 2004 in Alberta. At that time, the cap was set at $4,000. The regulations mandated that the cap would increase annually, in accordance with the consumer price index, to reflect inflation.
You may wonder what the policy rationale was that led to the cap being legislated. In essence, the cap was established as a means to balance the ability of injured victims to claim compensation for pain and suffering with the concerns of insurers facing rising costs. Of course, insurers argued not only that their own costs were increased, but that these costs directly led to costs to consumers in the form of increased insurance premiums. The cap was intended to control the costs associated with payouts for minor injuries, and to discourage litigation and its associated costs.
What Makes an Injury “Minor”?
One of the most difficult aspects of determining whether the cap applies is deciding which injuries, if any, should be classified as “minor” or “non-minor”.
Alberta’s Minor Injury Regulation, made under the Insurance Act, defines a minor injury as a sprain, strain or “WAD” injury that does not result in serious impairment. This is where things get a bit complicated. A WAD injury is defined as whiplash-associated disorder that does not exhibit either: (i) objective, demonstrable, definable and clinically relevant neurological signs, or (ii) a fracture to or a dislocation of the spine. The definition of “serious impairment” is lengthy and complex, and it makes reference to one’s ability to perform tasks of employment and everyday activities.
The complex definitions above speak to the difficulty of establishing whether or not an automobile-accident victim is subject to the cap.
Who Does the Cap Benefit & Disadvantage? Is the Cap’s Purpose Being Met?
As above, the policy reasons for the establishment of the cap include balancing the costs to insurers and insureds with the need to ensure that accident victims are adequately compensated.
Some people argue that the cap unfairly limits accident victims. Many people also argue that the complexity of the definitions does little to aid in clearly defining who is subject to the cap and who is not, and that consequently, the aim of lowering litigation costs is not achieved (i.e., because disputes arise surrounding whether or not certain victims fit the complex criteria that define “minor injury”). Many individuals with serious injuries may have to do an extensive amount of legwork in order to prove that their injuries are sufficiently serious not to be subjected to the cap. At the same time, insurers may try to convince unaware injured victims that any determination made by the insurer is final.
Disputes surrounding whether a victim is or is not subject to the cap creates hassle and expenses for both the injured and the insurer.
Pain and Suffering Damages are Not the Only Relief Available
Despite the difficulties that arise from a complex definition of “minor injury”, car accident victims should be aware that this cap is for pain and suffering damages only (also known as non-pecuniary or general damages) and does not apply to amounts available for medical treatments and lost income resulting from injuries. Injured victims can rest assured that these expenses are recoverable, insofar as they can be proven.
Unfortunately, if an injury is deemed to be “minor”, proving that large medical expenses were necessary, or that time away from work was justified, can be more difficult. Experienced personal injury lawyers can help you navigate the documentation and proof required to make your claim and help to ensure that you receive the maximum compensation you are entitled to.
Speak to a Motor Vehicle Accident Lawyer at Braithwaite Boyle Accident Injury Law
If you have been injured in an automobile accident in Edmonton, Red Deer, or Calgary speak to a personal injury lawyer immediately. Too often, injury victims deal directly with the insurer, accept the first amount of compensation that they are offered, and do not take all steps to ensure that they receive the compensation they need and are entitled to. Further, the process of dealing with an insurer can be extremely time-consuming and confusing.
*** Please note that this article is only to provide general information. It cannot be considered legal advice. If you have any questions or concerns, please contact Braithwaite Boyle at 1-800- 661-4902 and one of our lawyers would happy to assist you ***