Damages for pain and suffering, known as non-pecuniary damages, compensate injured claimants for the pain, suffering, loss of enjoyment of life and loss of amenities experienced as a result of the defendant’s negligence to the date of trial and into the future. The amount awarded is based on similar and comparable cases that proceeded to trial. As no 2 cases are identical, these comparable cases are used as a guide to identify a range of damages appropriate to the injured claimant’s circumstances.
A number of factors are considered when assessing pain and suffering awards including the age of the injured claimant, the nature of the injuries, severity and duration of pain, disability, emotional suffering and impairment.
The following are cases where pain and suffering awards were made to injured claimants who suffered a concussion, cognitive deficits, physical injuries and psychological injuries in motor vehicle accidents.
In Neufeldt v. Marcellus, 2020 BCSC 427, the 36 year-old male injured claimant (40 years-old at the time of trial), a RCMP officer, was injured in two (2) motor vehicle accidents. Following the first accident, he suffered from chronic neck pain, back pain, headaches, vestibular disturbance, hearing issues, depression and anxiety. His employment was limited by chronic pain, frequent severe headaches and the need to stop regularly during his shifts to stretch and walk. The second accident aggravated his headaches, neck pain and back pain and he suffered a new mild traumatic brain injury and a vestibular injury. The expert neurologist opined that the second accident resulted in a mild traumatic brain injury which led him to develop post-traumatic brain injury syndrome with associated symptoms of headaches, dizziness, blurred vision, decrease in balance, decreased memory, decreased concentration, decreased attention span, decreased ability to make decisions, decreased multitasking ability, irritability, mood swings, decreased libido, fatigue and poor sleep. A neurophysiological occupational and physical therapy assessment revealed that the injured claimant was not fit to return to work because of decreased cognitive endurance, headaches, and difficulties managing multiple demands at once and concentrating. A medical discharge from the RCMP was in active consideration at trial. The injuries placed a significant strain on the injured claimant’s marriage and family dynamics. He had difficulties reading, using screen, multi-tasking and balancing. His physical symptoms prevented him from participating in sports he used to enjoy. There were no relevant pre-existing conditions. Non-pecuniary damages were awarded in the amount of $200,000.00.
In Sirna v. Smolinski 2007 BCSC 967, the 25 year-old female injured claimant suffered significant ongoing physical, psychological and cognitive injuries in a motor vehicle accident which left her with permanent functional deficits. These deficits included chronic pain and fatigue associated with her soft tissue injuries, cognitive deficits, an impaired sense of smell and additional fatigue, all associated with her brain injury; reactive depression; and finally, a sometimes overwhelming sense of loss of the person that she was and could have been before the accident. The injured claimant underwent neuropsychological testing which revealed significant cognitive deficits in selective and sustained attention and memory. In addition, her attention to auditory information was considered weak. The expert psychiatrist opined that it was likely she suffered a mild traumatic brain injury and that many of her symptoms were consistent with a post-concussive disorder. He took into account the significant negative impact of chronic pain and depression on cognitive functioning. He expected chronic pain, variable depression and cognitive deficits to improve somewhat over time, but not to go away. Little positive change was expected in the future except to the extent that the injured claimant would be able to successfully monitor her activity and work levels. Some further improvement was expected in adapting to the cognitive deficits if she is not too tired. Otherwise, ongoing treatment would largely be palliative or directed at resolving periodic physical or emotional flare ups. She was also found to likely also experience depression on a periodic basis which would continue to be amenable to treatment. Non-pecuniary damages were awarded in the amount of $200,000.00.