As discussed in prior blog posts on ICBC pain and suffering awards, damages for pain and suffering (also known as non-pecuniary damages) are intended to compensate an injured claimant for pain, suffering, loss of enjoyment of life and loss of amenities caused by the motor vehicle accident injuries.
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 including any relevant and material pre-existing conditions. For example, if there is a measurable risk that a pre-existing low back condition before the accident was expected to cause future issues regardless of the motor vehicle accident, then there may be a percentage deduction for this pre-existing condition.
In Sandhu v. Peloquin, 2019 BCSC 1333, the 37 year-old plaintiff was injured in two motor vehicle accidents. Prior to the accidents, he had been very physically active and had physically demanding jobs including working in truck repair, a chicken factory, and as a commercial truck driver picking up and delivering containers. As a result of the accidents, he developed lower back pain radiating into his left leg which ultimately required surgery. The surgery stabilized his back but did not remove the back pain. He also developed psychological conditions related to his medical condition. He was unable to return to his pre-accident level of work, and his family, marital and social relationships suffered. The plaintiff had pre-existing back conditions, both spondylolytic spondylolysthesis and degenerative disc disease, that the court found were 15-20% likely to cause future issues absent the accidents. The plaintiff was awarded $175,000 in non-pecuniary damages, with a deduction of $30,000 for his pre-existing conditions (17%).
In Sirak v. Noonward, 2015 BCSC 274, the 45 year-old male plaintiff was a contractor who was injured in a motor vehicle accident. His injuries included ongoing and progressively worsening headaches; neck pain and back pain (primarily lower back but occasionally mid back); numbness, tingling, and pain radiating from his shoulders down his arms; numbness, tingling, and pain radiating down his legs; and numbness and tingling in his forearms and hands. The plaintiff also suffered cervical spondylosis at C5/6 and C6/7 and lumbar L5/S1 disc protrusion with cervical and lumbar nerve-root compression. Prior to the MVA, the plaintiff had been diagnosed with degenerative changes in his spine including spondylosis. Experts were divided on whether he was symptomatic at the time of the MVA. He was recommended to have cervical spine surgery as well as lumbar spine surgery due to the MVA-related injuries, but had not had them at time of trial. The court found that the soft-tissue injuries and progressively debilitating pain, cervical and lumbar nerve-root compression and associated neurological symptoms were caused by the MVA. The cervical and lumbar herniated discs were either caused by, or rendered symptomatic by, the MVA. The evidence did not establish that there was a measurable risk that the plaintiff would have suffered the injuries but for the accident, therefore no deductions were made for his pre-existing conditions. The plaintiff was awarded $160,000 for non-pecuniary damages.