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.

When deciding the amount to award to an injured claimant, the trial judge 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 trial judge will consider these factors as they relate specifically to the injured claimant.

In addition, a trial judge will also consider:

  • The expert evidence presented at trial by medical doctors to understand the nature of the injuries and how they have impacted the injured claimant’s life at work and outside of work along with what the future holds
  • The lay witness testimony (i.e. spouse, friends, family, co-workers) about the injured claimant and their observations from before and after the accident
  • The consistency between the injured claimant’s testimony about his/her injuries, the expert evidence and the lay witness testimony

In order to decide on the amount to award an injured claimant for pain and suffering, the trial judge will consider prior similar cases where pain and suffering awards were awarded to other 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 trial judge with cases at the high end of the range whereas ICBC’s lawyer will present cases at the low end of the range.  Ultimately, the trial judge will make a decision on the amount to be awarded.

In Lee v. MacLean 2022 BCSC 312, the injured claimant, a medical doctor, was injured in a motor vehicle accident.  Based on the evidence presented, the trial judge concluded that she sustained injuries to her neck (with associated headaches) and upper back.  While the upper back pain resolved, her neck pain and associated headaches did not and were considered chronic.  These injuries had a significant impact on her life especially at work.  The experts considered partially disabled from work as a result of this chronic condition.  The injured claimant was considered capable of working, but only on a part-time basis, due to pain and limitations.  Her personal life was also impacted.  Her husband de3scribed her as a different person after the motor vehicle accident.  ONce strong, capable and happy, she has become irritable and impatient with her family and she has little energy or inclination to engage in activities.

The trial judge awarded the injured claimant $130,000.00 for pain and suffering.  In determining the amount, he considered the following cases presented by both counsel:

[171]     On behalf of Dr. Lee, Mr. Fearon submits that an award of $130,000 for non-pecuniary damages is reasonable in Dr. Lee’s case.  Mr. Fearon highlights the effect of the injuries on Dr. Lee’s identity as a physician, and to her family life.  In other words, in Mr. Fearon’s submission, the injuries have had a profound effect on all aspects of Dr. Lee’s life.

[172]     In support of an award of $130,000, Mr. Fearon cites:  Kam v. Van Keith, 2015 BCSC 1519Ferguson v. Watt, 2018 BCSC 1587; and Watts v. Lindsay, 2019 BCSC 2239.

[173]     In Ferguson v. Watt, for example, the plaintiff, age 49, had what was described as a “demanding job” as a nurse.  She sustained multiple soft tissue injuries, including to her neck and upper back.  While a number of the injuries resolved within about six months of the accident, as of trial, the plaintiff was continuing to suffer with chronic pain in her neck, upper back, right shoulder and left knee.  She had also developed depression.  Although she was able to carry on in nursing management positions, she had a deep sense of loss that, as a result of her injuries, she was unable to return to the operating room, where her passion for her profession was rooted.  This was found by the court to be a very significant loss, described as “acute and ongoing.”  The court awarded $140,000 in non-pecuniary damages.

[174]     On the other hand, Mr. York, on behalf of the defendant, submits that a fair and reasonable award for non-pecuniary damages for Dr. Lee would be between $80,000 and $90,000.  The defendant says that Dr. Lee’s injuries had mostly resolved within a year of the accident and any remaining injuries (that is, to Dr. Lee’s neck) were of a minor nature, although subject to ongoing increased aggravation from Dr. Lee’s work.  In submissions, Mr. York repeated the argument that I rejected above, namely, if Dr. Lee’s injuries were debilitating, Dr. Lee would have seen more of Dr. Joffe.  Mr. York made a veiled mitigation argument concerning Dr. Lee’s use of medication.  However, when I inquired, he advised that the defendant was not arguing a failure to mitigate by Dr. Lee.  This was not surprising, since the opinion evidence (specifically from Dr. O’Connor) did not support it in any event.

[175]     In support of an award at this level, Mr. York cites:  Sears v. Olsen, 2020 BCSC 1289; Patterson v. Gauthier, 2019 BCSC 633; and Khademolhosseini v. Ji, 2019 BCSC 854.

[176]     In Sears v. Olsen, for example, the plaintiff (a 38 year old teacher) was awarded $85,000 in non-pecuniary damages.  As of trial, she continued to have chronic neck pain, back pain and headaches, and her prognosis was guarded.  She was also unable to engage to the same degree in the numerous athletic activities she had enjoyed prior to the accident.

[177]     In my view, the range of damages suggested by the defendant is too low, and fails to reflect my findings and conclusions concerning how the injuries sustained by Dr. Lee in the accident have affected both her professional and personal life.  The aggravation of Dr. Lee’s neck pain by her work as a gynecologic oncologist is not at all inconsequential (as the defendant appears to argue).  On the contrary, it is a significant component of Dr. Lee’s loss of enjoyment of life and loss of lifestyle.  It cannot be minimized in the way the defendant attempts to do.  In addition, in my view, the range of damages suggested by the defendant completely ignores Dr. Lee’s stoicism, and the sacrifices she has been and is willing to make to continue her work as a surgeon.

[178]     I find the cases cited by Mr. Fearon to be much more helpful in approaching the assessment of Dr. Lee’s non-pecuniary damages.

[179]     Having regard to my findings and conclusions above, the Stapley factors, and the cases cited to me in argument, I conclude that a fair and reasonable award for non-pecuniary damages for Dr. Lee is $130,000.

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