Injuries "Are Not Items on a Grocery List" and the Court "Is Not a Cashier"
Reasons for judgement were released this week providing feedback on valuing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) noting that injuries cannot be addressed in a piece-meal fashion and instead the total consequences need to be considered.
In this week’s case (Engqvist v. Doyle) the Plaintiff was involved in two collisions. She was not at fault for either. The crashes caused various soft tissue injuries which required diagnostic medial nerve blocks and depending on the result the possibility of facet rhizotomies. The Plaintiff also sustained a dental injury. Given the planned further medical intervention there was likelihood of improvement but also a good chance that the Plaintiff’s injuries would pose permanent difficulties. Global Non-Pecuniary Damages of $70,000 were assessed for the Plaintiff’s injuries.
In arriving at this figure Mr. Justice Rogers provided the following comments addressing the fact that it is wrong to stack injuries in assessing non-pecuniary damage awards:
[28] The plaintiff’s approach to assessing non-pecuniary damages is flawed. Discrete physical injuries are not items on a grocery list, and the court is not a cashier totting up the damage. The plaintiff’s dental injuries cannot be given a separate line-item in the assessment of her non-pecuniary loss. The assessment is a global exercise and must be based upon the effect that the injuries as a whole have and will have upon the plaintiff’s life.
[29] I find that the plaintiff’s injuries have had and will in the future have a significant impact upon the plaintiff’s ability to enjoy life. The injuries have curtailed the plaintiff’s otherwise active lifestyle. She does not ride her bicycle as much as she used to, she does not play golf with the same frequency or engagement as before the accidents, and her overall participation in life has been diminished. She has a constant ache in the soft tissues over her right shoulder blade. It takes very little use of the plaintiff’s right arm to cause that ache to escalate to a serious pain. The plaintiff will likely undergo at least one series of medial nerve block injections. These will be painful procedures. They are diagnostic in nature – that is to say: the discomfort that she will experience during these injections will be only part of the price in pain that she will have to pay. If the nerve blocks are effective, then the plaintiff will likely undergo one or more rhizotomies. These will be wildly painful. If successful, the rhizotomies will afford the plaintiff with considerable but not complete relief from her symptoms. The relief will likely not be permanent and will last anywhere from six months to five years. The plaintiff may choose to undergo as many as two more rhizotomies. She might, on the other hand, decide to simply live with the pain. In either case, the plaintiff’s enjoyment of life will be reduced by symptoms attributable to the accidents.
[30] I have reviewed the authorities upon which the parties rely in support of their respective positions. No one case is entirely on point, nor is any one case completely irrelevant. In my view, the proper amount of non-pecuniary damages for the first collision is $65,000 and for the second collision it is $5,000.
For a discussion of the factors BC Courts do consider in assessing non-pecuniary damages you can click here for a podcast I uploaded last year.