After a car accident non-pecuniary damages are awarded to compensate the claimant for pain, suffering, loss of enjoyment of life, and loss of amenities. The compensation awarded must be fair to the at fault party. Fairness is measured against court awards made in comparable cases. However other personal injury cases, though helpful, serve only as a rough guide.
In our case example the claimant was driving west on the Lougheed Highway, entered the intersection on a green light. The other driver turned left to proceed north on 287th Street, causing a T-bone collision. The force of the impact was substantial. The claimant’s airbag deployed. The collision rendered both vehicles inoperable.
A non-exhaustive list of the factors to be considered when assessing non-pecuniary damages include the age of the claimant; the nature of the injury; severity and duration of the pain; disability; emotional suffering; loss or impairment of life; impairment of family, marital and social relationships; impairment of physical and mental abilities; and loss of lifestyle. Generally, stoicism should not penalize a claimant.
In this case there was little or no objective evidence of continuing injury and the claimant’s complaints have persisted beyond the usual period for recovery. In British Columbia this means the court must assess the claim in light of all the surrounding circumstances, including the medical evidence.
Here, the claimant readily acknowledged that he had recovered from the soft tissue whiplash injuries to his mid-back, shoulders, neck, legs, knees and wrists within two months of the car accident. The judge was satisfied that the claimant continued to experience chronic low back pain.
After the initial time off work the claimant has completed all of his regular full-time shifts, occasionally with accommodations from his current employer or assistance from fellow employees. However, as a result of his low back pain, he tires as the day progresses, experiences pain and discomfort, and sometimes struggles to complete his shifts.
The claimant, age 23, will probably continue to experience his persistent low back ache, intermittent numbness in his left leg, and flares of low back pain of varying intensity indefinitely, and with no significant improvement. Fortunately, he is unlikely to suffer any progressive deterioration of his low back injury. The court assessed damages for the plaintiff’s pain and suffering and loss of enjoyment of life in the amount of $70,000.(O’Brien v. Cernovec, 2016 BCSC 1881)
The total awarded is summarized as follows:
|(a) Non-pecuniary damages:||$70,000|
|(b) Past loss of earning capacity:||$15,300|
|(c) Loss of future earning capacity:||$100,000|
|(d) Cost of future care:||$5,000|
|(e) Loss of homemaking capacity:||Nil|
|(f) Out of Pocket Expenses:||$2,117|
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.