For ICBC claims, there are various type of damages that may be claimed including:
- Non-pecuniary damages also known as damages for pain and suffering
- Past wage loss for net income loss from the date of the motor vehicle accident until settlement or trial
- Future wage loss or future loss of earning capacity for anticipated future income loss
- Loss of housekeeping capacity for the loss of the ability to perform household chores
- Future care costs for future anticipated treatment costs
- Special damages for reimbursement of rehabilitation expenses incurred such as treatment costs, prescriptions, over the counter medications and mileage to attend medical appointments
The rationale behind an award for pain and suffering (non-pecuniary damages) is to compensate an injured claimant for the injuries suffered in a motor vehicle accident and impact those injuries have had on his or her enjoyment of life.
The amount of damages awarded for pain and suffering is case specific according to various circumstances of the injured claimant. Some of the relevant factors established in law by cases that have proceeded to trial include:
- age
- nature of the injury or injuries
- severity and duration of the pain
- disability from employment or from participating in social and recreational activities
- emotional suffering
- loss or impairment of life
- impairment of family, marital and social relationships
- impairment of physical and mental abilities
- loss of lifestyle
When determining what is a fair and reasonable award for pain and suffering, prior trial awards made for injured claimants in similar circumstances are taken into consideration for guidance.
In Harle v. Williams 2020 BCSC 1684, the 29 year-old male injured claimant suffered from pain symptoms in the neck, back and shoulder as a result of a motor vehicle accident. Prior to the collision, he was healthy with no pre-existing physical or psychological problems. He was described by witnesses as an outgoing and optimistic person before the collision. He worked in a physical occupation and he enjoyed being physically active even after long days of demanding work. Following the collision, the change in his physical and psychological condition were noticeable compared to his pre-accident state. He was moodier and somewhat withdrawn. His hockey teammates noticed that he became less aggressive on the ice and did not play with the same drive. He became quieter and less engaged with his teammates. He was observed to be in pain in various instances.
The injured claimant’s family doctor and a specialist in physical medicine and rehabilitation diagnosed soft tissue injuries to the neck, shoulder and back. The pain symptoms were ongoing at the time of the trial which was approximately 3 years after the motor vehicle accident. The injured claimant testified that his pain ranged from tolerable to moderate and that his physically demanding work aggravated these symptoms. Despite his injuries, he was able to continue working and playing hockey, albeit at a reduced capacity. The medical expert specialist was of the opinion that his condition may improve if he responded well to treatment he recommended. However, it was also acknowledged that his condition may not improved even with the benefit of treatment. The trial judge noted that a complete resolution of his pain symptoms was uncertain at the time of trial.
Taking into account the above-noted factors and the individual circumstances of the injured claimant, the trial judge awarded $50,000.00 for pain and suffering.
In awarding damages for pain and suffering, the trial judge considered the following cases as guidance although he noted that these cases involved injuries that were considered more serious and permanent:
- Stocking‑Pearson v. Vinette, 2019 BCSC 2182. The 27-year-old plaintiff sustained soft tissue injuries to his neck and back. He worked as a truck driver and crane operator. He missed a few months of work and gradually returned to full‑time duties within nine months of the accident. The plaintiff continued to do physically demanding work to the date of trial. His neck pain resolved within six months, but his back pain continued to affect his activities. Both of the physicians whose evidence was before the court concluded that the plaintiff in that case had permanent injuries that required ongoing symptom management. The court awarded $80,000 in non‑pecuniary damages.
- Gunson v. Sekhon, 2015 BCSC 2491. A 37‑year‑old plaintiff was injured in an accident and suffered chronic intermittent low back pain. He missed four weeks of work immediately after the accident, then returned full time in a physically demanding job. His injuries were unlikely to resolve. The plaintiff received $80,000 in non‑pecuniary damages.
- Lowe v. Johnson, 2019 BCSC 1283. The plaintiff was 26-years-old at the time of the accident that caused injuries to her right neck, back and shoulder. Low back pain, headaches and elbow pain resolved, but her right shoulder injury was unlikely to improve. She missed four months of work due to her injuries. The court awarded $60,000 in non‑pecuniary damages.
Please see our prior blog articles for more information on how to determine what your ICBC claim is worth,