Pain and Suffering and Your ICBC Claim
One of the most common questions asked of me through this blog is “how much is my Pain and Suffering worth in my ICBC personal injury tort claim?”. The answer to this, of course, depends on various factors and who better to discuss these than a BC Supreme Court judge?
On that point, reasons for judgement were released today discussing the law of ‘pain and suffering’ in tort claims. Pain and Suffering is awarded under the legal head of damage called “Non-Pecuniary Loss”. Non Pecuniary Loss includes damages for “pain and suffering, loss of enjoyment of life and loss of amenities”.
In today’s case $70,000 was awarded in non-pecuniary damages as a result injuries sustained in a 2005 BC car crash. In doing so Madam Justice Russell summarized the law of non-pecuniary damages ar paragraphs 104-105 of the judgment as follows:
Non-pecuniary damages
[104] The purpose of non-pecuniary damage awards is to compensate the plaintiff for “pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023, B.C.J. No. 1535 at para. 134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Kuskis v. Tin, 2008 BCSC 862, B.C.J. No. 1248. While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as a guide to assist the court in arriving at an award that is just and fair to both parties: Kuskis at para. 136.
[105] There are a number of factors that courts must take into account when assessing this type of claim. The majority judgment in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19, outlines a number of factors to consider, at para. 46:
The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages includes:
(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(d) disability;
(e) emotional suffering; and
(f) loss or impairment of life;
I would add the following factors, although they may arguably be subsumed in the above list:
(g) impairment of family, marital and social relationships;
(h) impairment of physical and mental abilities;
(i) loss of lifestyle; and
(j) the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.)).
Cases such as this one are key in helping one understand the principles behind awards for pain and suffering in ICBC tort claims. Once the general principles of this head of damage are understood, the extent of injuries and prognosis known, and cases with similar injuries are canvassed the easier it will be to value the potential range of damages for pain and suffering in an ICBC personal injury (tort) claim.