"More Attention Needs to be Paid to the Rubric of 'Suffering' than 'Pain'"
Reasons for judgement addressing quantum of damages were released last year by Arbitrator Camp in an ICBC UMP Dispute assessing $75,000 in non-pecuniary damages for a Claimant who suffered relatively modest injuries.
In last year’s case (Undisclosed v. ICBC) the three Claimants suffered injury in a 1996 collision in Washington State. At trial each was awarded over one million dollars. As the at fault motorist was under-insured the Claimants applied to ICBC for UMP. They had to re-litigate the value of their claim as the Washington Jury award was not binding on ICBC for UMP purposes.
The collision injured all occupants of the vehicle all of whom were related to each other. The Claimant and her three daughters were injured, some of these injuries were severe. While the Claimant’s injuries themselves were not severe her “matriarchal role…has been significantly and adversely affected“. In assessing non-pecuniary damages at $75,000 Arbitrator Camp provided the following reasons:
97. With respect to general damages for pain and suffering, this is a claim in my opinion in which more attention needs to be paid to the rubric of “suffering” than “pain”. I turn to a few fairly recent British Columbia decisions which offer guidance in this area….
102. Hence, in addition to listing “emotional suffering” (not defined) as a common factor influencing the award of non-pecuniary damages, the Stapley case considers, and adds commentary and an award for the “loss of lifestyle”.
103. In Kuskis v. Tin, 2008 BCSC 862, the plaintiff suffered from a worsening of a pre-existing migraine disorder, a new form of headache and low grade but persistent neck and shoulder pain as a result of soft tissue injuries caused by a motor vehicle accident. In awarding Ms. Kuskis non-pecuniary damages, the court noted that she was “sometimes exhausted, irritable and unhappy”, and while she could work, travel and socialize most of the time without significant impairment, her personal life has been diminished by her increased headaches and pain. Specifically, her ability to form and maintain intimate relationships has been compromised by her increased irritability and fatigue (para 143).
104. Other factors taken into consideration under the general concept of “pain and suffering” include: anxiety, depression, deleterious impact on quality of life (specifically comparing personality and lifestyle before and after the accident) (see Djukic v. Hahn, 2006 BCSC 154 at paras. 61-64); changes in personality including being more “withdrawn and distracted”, increased tiredness, and inability to enjoy activities previously enjoyed (see Fox v. Danis, 2005 BCSC 102 at paras. 112-122); and depression affecting concentration and attention (Maillet v. Rosenau et al., 2006 BCSC 10 at paras. 63-65).
105. I find that Mrs. T has suffered much more than just aches, pains and headaches. Her world was and is hinged on her matriarchal role that has been significantly and adversely affected by this accident as described above. Taking all of the circumstances into account, I find an appropriate award of damages for pain and suffering to be $75,000.