Damages for pain and suffering, also known as non-pecuniary damages, are awarded to compensate an injured claimant for the pain and suffering, loss of enjoyment of life and loss of amenities caused by a defendant’s negligence. The amount of the award is not determined by the nature or seriousness of the injuries alone. Additional factors include the injured claimant’s age; the severity and duration of their pain; disability; emotional suffering; impairment of family, marital and social relationships; impairment of physical and mental abilities; loss of lifestyle; and the injured claimant’s stoicism. An appreciation of the injured claimant’s loss is the key. Compensation for non-pecuniary losses must also be fair and reasonable to both parties. Fairness is measured against awards made in comparable cases, recognizing they offer rough guidance only because there are unique aspects to each injured claimant’s circumstances.
In Matei v. Wu 2022 BCSC 107, the 51 year-old female injured claimant was injured in a motor vehicle accident when her vehicle was rear-ended. She was an avid highly ranked tennis player and a full-time radioloigical technician at the time of the collision. She claimed to have suffered soft tissue inquires to her neck and low back, as well as headaches, sleep disruption and mood symptoms. By the time of trial, her neck pain was largely resolved and her headaches were only occasional. Her persistent daily low back pain was her main ongoing symptom from the accident in addition to her mood. Her low back pain prevented her from returning to tennis, a sport she loved and devoted many hours of her week to playing. Her low back also impacted her ability to work full-time and accept any overtime shifts.
As comparable cases provide a rough guidance, both the injured claimant and ICBC provided the court with similar cases to consider.
The injured claimant provided cases at the high end of the range ($120,000 – $150,000) which were summarized by the trial judge as follows:
- Sawires v. Paris, 2021 BCSC 240 – the plaintiff was awarded $110,000 in non-pecuniary damages (para. 100). Much younger than Ms. Matei, he too sustained soft tissue injuries to his neck and back, leaving him with chronic right sided low back pain. Highly athletic, the plaintiff was no longer able to play hockey and soccer, two of his most important sports. Like Ms. Matei, his ongoing symptoms and their impact on his lifestyle had affected his emotional health (para. 2). However, his low back injury and resulting pain had also resulted in a herniated disc that caused shooting pain and tingling into his right leg (para. 47). Further, the effect of his injuries and symptoms on his personality and his emotional functioning was much more significant (para. 84).
- Martin v. Frederickson, 2021 BCSC 1424, the plaintiff was awarded $120,000 in non-pecuniary damages based on similar, but in several ways more serious, circumstances than Ms. Matei’s (para. 56). Again much younger, the plaintiff had been a national level biathlete and remained active at the time of the accident (para. 3). Unlike Ms. Matei, in addition to soft tissue injuries, the plaintiff suffered from concussion like symptoms and frequent migraine headaches for a period of time. Similar to Ms. Matei, constant neck pain had become chronic. The plaintiff also suffered from worse low mood and depressive symptoms than Ms. Matei. In addition, she continued to not sleep well and after access to treatments was restricted by Covid-19, her condition deteriorated a few months prior to the trial (para. 55). Although she had continued working as an LPN, the plaintiff spent most of the rest of her time at home sleeping (para. 29). Her poor mood and reduced energy had significantly strained her relationship with her spouse as well as friendships. Both her spouse and her children had taken on significant aspects of the housework that she had previously done (para. 39).
ICBC, in turn, provided the court with cases at the low end of the range ($40,000). The trial judge ruled that ICBC’s cases were not comparable enough to be of assistance. Unlike the injured claimant in this case, ICBC’s cases involved injuries which did not impact employment, which lacked objective evidence, which were inconsistent and where there was a lack of mitigation. Accordingly, the trial judge did not rely on any of these cases when making the pain and suffering award in the amount of $90,000.00.