Proposed Changes to Awards for Pain and Suffering in British Columbia
For injury victims of car accidents, the NDP government is planning to legislate a $5,500 cap on injury claims for pain and suffering starting in 2019. This will destroy the gains injury victims have made over reckless culprits, bad drivers and highway offenders.
Allowing the current NDP government to dictate caps on injury claims is a victory for the Insurance Corporation of British Columbia, one of the biggest auto insurance monopolies in North America.
Unfortunately ICBC, in the last 8 years, has not shown the ability to provide a democratic, transparent, fair or an economically competitive auto insurance service. ICBC eliminated its own access to information department; eliminated the ICBC rehabilitation department; stopped providing money advances to the injured; forced many injury cases unnecessarily to court; been ordered to pay for bad corporate behaviour, and has financially bungled over $110 million in policy money. Some may remember the ICBC forecast of a $230 million profit in 2013. Now they are conveniently forecasting a loss.
This current NDP government will be replacing our current compensation system by one with arbitrary limits made to maximize corporate profit, that is the corporate profit of ICBC. This done on the backs of the injured without consideration to cutting or eliminating ICBC.
We Need Fair Pain and Suffering Awards to Protect the Injured
To protect and preserve the value of human life advanced countries like Canada have developed compensation schemes for pain, suffering and loss of enjoyment of life. With the exception of creating ICBC in 1972, British Columbia has created a legal system which respects the pioneering spirit of every citizen and awards compensation for the unreasonable loss of this spirit and other important enjoyments of civilized life not considered economic losses.
Pain and suffering is not the only claim for losses due to injury but it is the only award that values pain-free life and its aim is dignity and respect for the human person.
Pain and suffering is part of an overall claim for intangible non-economic losses called “non-pecuniary damages”. Because non-pecuniary damages are intangible, money awards are meant to make up for what has been lost while accepting that what has been lost is incapable of being replaced in any direct way.
A claim for non-pecuniary damages includes factors such as pain and suffering, loss of amenities, loss of enjoyment and loss of expectation of life.
Current Maximum and Minimum Awards for Pain and Suffering
Since the 1970s awards for pain and suffering in Canada have been effectively limited to $100, 000. This amount has been inflated over time in accordance with the consumer price index.
As of 2018 the maximum cap on claims for non-pecuniary damages is approximately $375, 000.00 for the most serious injuries. The current NDP coalition government proposes to add a $5,500 cap on what they are calling minor injuries.
Currently in our law to arrive at the appropriate money award judges look at prior cases with similar injuries, impairments and disabilities. For juries, they are asked to use their own judgment in arriving at a fair and reasonable amount for pain and suffering, without the benefit of prior cases. The result is that each award is decided on its own merits according to the evidence accepted by the court. The proposed $5,500 will eliminate years of important judicial consideration and replace it with an arbitrary injury cap.
Understanding medical and legal issues is important to assessing most personal injury cases, whether they are considered minor, moderate or severe. The diagnosis, prognosis and treatment can affect the award for pain and suffering.
In the proposed new ICBC system, ICBC will have an entire legal department of lawyers working for the best interest of ICBC. Claimants, however, will have no rights to a legal advocate and lawyers will not be allowed to help injury claimants in a complicated tribunal process to decide an injury victim’s future compensation.
What We Can Do to Protect our Quality of Life
It is not too late for the government to change the current development of auto insurance to focus on ICBC and not on the innocent victims it was created to protect. Our government can immediately cap auto policy premiums, force ICBC to pay victims early, and open competition with more competent auto insurance companies to given people in BC choice. These are only a few steps that would reduce the cost of auto insurance without reduced the hard earned quality of life in British Columbia.
Learn more about proposed caps on injury claims in BC: