Plaintiff lawyers pushing the damages envelope: ORIMS seminar

Plaintiff lawyers are increasingly trying to convince the courts of specific damages, which used to be part of general damages, in a bid to get damage amounts above and beyond the cap on non-pecuniary damages, people attending the Ontario Risk and Insurance Management Societys (ORIMS) Professional Development Day were told.
In his presentation, entitled Calculating Damages: Basic Principles & Unbelievable Examples, Jamie Trimble, a partner with Hughes Amys LLP in Toronto, warned of emerging heads of damages that could lead to hefty awards if recognized by the courts.
The first, loss of competitive advantage, is made to compensate the plaintiff who is able to work in their chosen work area, but due to their injuries is disadvantaged (compared to others in the field), Trimble said.
Oftentimes plaintiffs misuse this type of damage, confusing it with loss of future income, Trimble said.
The second, loss opportunity for interdependent relationships, typically arises in actions involving a catastrophic injury. He said it is based on the theory that two people living together can live cheaper than one person living alone, but cannot obtain these economies of scale because of the injuries, he said.
And third, loss of insurability, is for a claim for the increased cost of life or disability insurance for the plaintiff because the injury, or [because] the cost of the treatment that the plaintiff will require which would have been paid for by an insurer is no longer available because of the accident, Trimble explained.
While plaintiffs may push for these emerging types of damages, the proof to establish them is extremely difficult, he added.
Because of the crystal-ball nature of them, the courts will be suspicious and will not award them solely on speculation.