Damages for pain and suffering, which are known as non-pecuniary damages, are intended to compensate an injured claimant for pain, suffering, loss of enjoyment of life and loss of amenities.
In deciding the amount of pain and suffering to award to an injured claimant, the court will take into account several factors. These factors include the age of the injured claimant, the nature of the injury, the severity and duration of pain, disability, emotional suffering, loss of impairment of life, impairment of family, marital and social relationships, impairment of physical and mental abilities, loss of lifestyle and stoicism.
The court will consider these factors as they relate specifically to the injured claimant in addition to reviewing cases involving pain and suffering awards made at trial to other injured claimants in similar circumstances. The lawyers for each party will then present a number of similar cases and suggest a range for the trial judge to consider. Generally, the injured claimant’s lawyer will present the court with cases at the high end of the range whereas ICBC’s lawyer will present cases at the low end of the range.
In Madii v. Gill 2021 BCSC 1991, the 53 year-old male injured claimant was a motorcyclist who was suffered a serious and complex fracture of his right leg in a motor vehicle accident. He was hospitalized for approximately 1 month and underwent 2 surgeries. He was immobile for several months due to his injury where he relied on a wheelchair and then a cane. As a result of the fracture, he developed osteoarthritis which limits his function. He is at risk for future deterioration and he will require knee replacement surgery in the future. Before the motor vehicle accident, he was employed in physical labour and he enjoyed an active and outdoor lifestyle.
The trial judge considered the following cases provided by the injured claimant and ICBC in awarding $125,000.00 for pain and suffering:
In Zicari v. Young, 2001 BCSC 1549, a 29 year old woman was hit by a car and suffered a fracture to her femur and tibia requiring surgery including the insertion of screws and a plate into her leg, as well as a resulting prominent scar. She was in the hospital for 17 days and subsequently underwent significant rehabilitation. Her injuries caused depression, anxiety, and post traumatic stress disorder, and a negative impact on her ability to engage in recreation. She experienced significant ongoing pain in both knees, and her prognosis for further improvement was poor. She remained able to carry out housework, drive, shop, and go on holiday, due to her stoicism and commitment to rehabilitation efforts. Justice Allan awarded her $110,000 in non-pecuniary damages.
In Manky v. Scheepers, 2017 BCSC 1870, a 31 year old truck driver was injured in a collision. His most significant injury was to his right knee, with pain extending into his hip. Following the collision, he was taken to the hospital and ultimately underwent surgery on his knee and leg for his several fractures. He was subsequently non-weight bearing for six weeks, following which he engaged in physiotherapy and exercises, and remained off work for five months. He experienced ongoing pain in his knee, hip, lower back, and shoulders; however, he was stoic and continued to work and drive long distances 14-15 hours a day. He did have to curtail his recreational activities of hunting and fishing. His pain was ongoing and chronic, and he would likely face future deterioration and require a future knee replacement. Justice Kent assessed a minor negative contingency due to pre-existing lower back and neck pain and awarded $125,000 in non-pecuniary damages.
In William v. Ross, 2017 BCSC 2200, a 59 year old plaintiff was involved in two accidents. She suffered a tibial plateau fracture that required surgery and the insertion of hardware. She also suffered soft tissue injuries to her neck, back, and shoulder as well as a fracture to her left foot and a dislocated toe. At the time of trial, she continued to suffer from neck and back pain in addition to chronic knee pain. The Court found that she was permanently disabled and would suffer from chronic knee pain. Justice Bowden awarded her $125,000 in non-pecuniary damages.
In Cantrill v. Taylor, 2021 BCSC 764, the plaintiff was involved in a motor vehicle accident in which she suffered a fracture to her right knee which required two surgeries and did not heal properly. She also sustained a dislocated right toe, a lacerated tongue, some contusions, and soft tissue injuries. She would likely need a full knee replacement in the future. She was unable to work for approximately 18 months. Justice Edelmann awarded her $105,000 in non-pecuniary damages.