When negotiating settlement with ICBC, it is important to provide information supporting the amount claimed for pain and suffering (also known as non-pecuniary damages). Guidance for what constitutes a fair and reasonable ICBC settlement comes from prior case law. When researching prior trial awards, it is important to find cases which involve similar facts.
When researching case law for similar cases, the non-exhaustive list of common factors which influence an award for pain and suffering includes:
- age of the plaintiff;
- nature of the injury;
- severity and duration of pain;
- emotional suffering; and
- loss or impairment of life;
In addition, the following factors are also important:
- impairment of family, marital and social relationships;
- impairment of physical and mental abilities;
- loss of lifestyle; and
- the injured claimant’s stoicism (as a factor that should not, generally speaking, penalize him/her)
In Floris v. Castillo 2020 BCSC 1447, the female claimant was injured in a motor vehicle accident on May 14, 2015 when she was rear-ended.
At the time of the motor vehicle accident, the injured claimant was 21 years-old and working several jobs primarily in the restaurant industry. She had goals of becoming a care-aid. She was very active regularly skiing in the winter and hiking in the summer. She was also very involved with yoga.
The experts testifying for the injured claimant and for ICBC shared similar and consistent opinions regarding her injuries. They both diagnosed her with permanent soft tissue injuries to her neck, upper back and low back which impacted her ability to return to her former active lifestyle and which would impact her in her career as a care-aid. The experts differed, however, on whether the injured claimant had plateaued with her recovery or whether there was still some room for further improvement. ICBC’s expert was of the view that there would “hopefully” be more improvement into the future which the trial judge dismissed as being too hopeful without any firm or even reasonable prospect.
The injured claimant argued that $80,000.00 to $100,000.00 for pain and suffering was appropriate based on case law and prior trial awards made in similar circumstances.
ICBC argued that $40,000.00 was appropriate.
In awarding the injured claimant $85,000.00, the trial judge stated:
 I am satisfied Ms. Floris suffered injuries to her neck, upper back and lower back that have caused significant pain and discomfort since the subject accident. While her symptoms have fluctuated in severity such that she has both “bad days” and relatively “good days”, her symptoms nonetheless affect most areas of her life. Her injuries and symptoms give rise to severe headaches once or twice a week and these interfere with her sleep. The accident also caused what I would describe as a mild to moderate driving anxiety.
 The injuries and their after-effects have caused her to change her lifestyle significantly. Formerly, she was an active individual who enjoyed running, advanced yoga and vigorous outdoor activities. Now, her activities are mostly sedentary in nature. This has had negative consequences for her social relationships.
 I conclude as well that Ms. Floris’ injuries and symptoms have interfered with her ability to work.
Again, this is another case where ICBC argued for a unreasonably low trial award for pain and suffering and lost. The award in this case was more than double what ICBC claimed was appropriate even though the case law supported a much higher award. Undoubtedly, this is what unnecessarily forced this matter to trial costing ICBC thousands of dollars and wasting valuable court time. If ICBC were to treat injured claimants fairly, ICBC would save thousands of dollars per claim. Instead, ICBC continues to mishandle and mistreat injured claimants. Our NDP government in turn continues to blame the injured claimants instead of ICBC management.