May 24, 2019- Whether personal injury claimants have been diagnosed with whiplash, soft tissue injury, WAD (whiplash associated disorder), back or neck injury, a $25,000 offer from ICBC to resolve a personal injury claim can be temping to accept, especially with minor injury caps.
In British Columbia money awarded for pain and suffering is assessed and not calculated, although the minor injury cap is arbitrary.
Most personal injury cases are settled and do not go to court, although court decisions are used to guide the level of settlement. Assessment versus calculation means if the case does go the court, a judge will make findings of fact and then assess the value relative to prior similar cases. Although there are no calculating formulas used to obtain the amount for pain and suffering, much of a claim, loss of income and out of pocket expenses to name two, are calculated and mathematical formulas can be employed.
Today we are only addressing the award for pain and suffering so readers need to be aware that most personal injury cases will provide compensation for more than just pain and suffering. Also, if you are not seriously impaired for more than 12 months ICBC will likely call you a minor injury and limit your compensation.
Money for pain and suffering, called non-pecuniary damages, compensate and provide solace for a loss of the amenities, pain, suffering and loss of enjoyment of life. This award is intended to compensate a person for those damages up to the date of trial and also for damages that the person will suffer in the future. The award must be fair and reasonable to both the claimant and ICBC. The amount of an award for pain and suffering does not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation ( see Lindal v. Lindal,  2 S.C.R. 629 at 237)
Here are three cases in which ICBC assessed the case at $25,000 and the court disagreed:
1. Cuts and Scrapes
With respect to a scar, the size, severity and location of the scar are some of the particular factors. The injured party’s perception of the injury is also an important factor. In determining the appropriate award, the Court has considered the claimant’s anxiety with respect to the scar. The Court has also included as a factor the tingling she experiences at the site of the scar. The Court awards $25,000 as non-pecuniary damages. (Nogueira v. O. Alasaly Pharmacy Ltd., 2014 BCSC 1237 para 43)
2. Personal Injures have fully Healed
Rogalsky v. Harrett, 2014 BCSC 1255- The injury Claimant suffered moderate soft tissue injuries to her neck, upper back and right shoulder a motor vehicle accident. The accident caused her to suffer from symptoms of thoracic outlet syndrome and carpal tunnel syndrome, which symptoms are now resolved. ICBC argued that at best the appropriate range of pain and suffering damages would be $15,000 to $25,000. The Court awarded $35,000.00 ( 2014 dollars)
3. Injuries developing into Chronic Pain Condition
Chiang v. Medland, 2014 BCSC 737- The lawyer representing the ICBC insured assessed the pain and suffering at $25,000 to $75, 000. The court assessed pain and suffering at $100,000 for this personal injury claimant. The Claimant’s problems were multifactorial, and related to her pre-existing conditions, the accident, and other falling injuries. The court accepted that the combination of factors has left the Claimant significantly disabled.
On the other hand there are injury cases in which the claimant is awarded $25,000 despite seeking a much higher award. In Gulbrandsen v. Mohr, 2012 BCSC 1869, for example, the claimant sought $60,000 for pain and suffering. She provided the court with numerous cases in which judges assessed non-pecuniary damages for pain and suffering in circumstances which were said to be analogous to those of the claimant. The claimant had a mild to moderate soft tissue injury to her upper back with episodes of dizziness. There were few objective signs of injury. The Judge awarded $25,000 for pain and suffering despite ICBC making an offer to settle of $50,000 before trial. The claimant had to pay additional costs for not accepting a reasonable offer to settle.
What these personal injury cases show is that $25,000.00 for pain and suffering is not a one size fits all amount. $25,000 is a good ICBC offer in some of these cases and not others. $25,000.00 was not a reasonable settlement for the claimant that suffered from a chronic pain condition. However, after April 1, 2019 if you suffer a whiplash that does not cause serious impairment for more than 12 months, ICBC will label you a minor injury. You pain and suffering compensation will be cut off at $5,500, regardless of your chronic pain
ISSUE: Do you think the current cap of $5,500 on pain and suffering for minor injuries is fair?