This personal injury appellant sustained injuries in a car accident when his Land Rover was hit from the rear by a Honda Civic. After a nine-day trial, a jury awarded him $19,000 in damages, including only $600 for his pain and suffering. The injury claimant appealed the jury’s verdict and wanted a new trial on the basis that the verdict was clearly unreasonable and resulted in an unjust outcome.(Valdez v. Neron,2022 BCCA 301)

The problem was that the jury heard conflicting evidence regarding his prior workplace injuries, the injuries from the car accident, and the extent to which the accident injuries contributed to his disabilities. It was clear that his credibility was a critical issue at the trial, in particular in relation to his prior injuries and his ability to continue working.

The jury did find that the claimant had received injuries and yet awarded him only $600 for his pain and suffering. In accordance with the law in this province, the jury was not provided with any guidance as to the range that could be awarded for pain and suffering. The Court of Appeal considered the award of $600 to be essentially equivalent to a de minimis award of $0. This could not be reconciled with the loss of income awards which appear to be predicated on the jury’s view that he was disabled from working for two and a half months after the accident. The jury’s awards were therefore in conflict. This was a sufficient basis to grant the appeal: Stewart v. Shimpei (1995), 65 BCAC 113 at para. 18.

Appeal of the Award for Pain and Suffering Successful

The verdict for pain and suffering could also be considered to be “so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it”. It is obvious that the jury did not like the claimant reflected in  the low award. It is clear that the jury did not accept the appellant’s theory of the case, being that he continued to be disabled and was suffering from the effects of his injuries as at the time of trial, that is approximately two and a half years after the accident occurred.

Having determined that it was appropriate to substitute an award of damages, the Court of Appeal turned to the issue of quantum. The Court was of the view that the benchmark should not be the lowest possible award, but rather an amount that is fair to both parties and bearing in mind the evidence that the jury probably accepted in reaching its verdict.

Assessing How Much to Award for Pain and Suffering

In this case, the appellant was 53 years old at the time of the accident. The jury must have concluded that he sustained soft tissue type injuries to his neck and back that caused short-term income loss and which required some therapies for approximately two and a half months. Given: the appellant’s age; that his pain and suffering and loss of amenities of life resulted from a combination of new injuries sustained in the accident and pre-existing conditions; and there was a basis for the jury’s skepticism which arose from unreliable self-reporting to some of the medical providers and his evidence at the trial, The Court of Appeal considered an appropriate range for pain and suffering in this case to be $30,000 to $40,000 with the mid-point, being $35,000, constituting an award that is fair to the parties.

The Court therefore allowed the appeal to the limited extent of increasing the pain and suffering from $600 to $35,000.

The NDP in BC have changed the law and claimants are no longer allowed to claim compensation for pain and suffering in most car accidents that occur after May 1, 2021. Accidents occurring Between April 1, 2019 and May 1, 2021 may also be capped at about $5,600 for awards to compensate for pain and suffering. Get legal advice for your case before trying to settle with ICBC.

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