Paine Edmonds LLP - Blog
What is My Case Worth? Pain and Suffering Damages Explained
- April 2, 2012
By Ivar Lee, Partner at Paine Edmonds LLP, Vancouver Personal Injury Lawyer
As a Vancouver personal injury lawyer, it is not uncommon that I am asked the following question by someone recently injured: “What is my case worth?”
It is completely understandable that someone would be curious about this, especially when they are deciding whether to hire a personal injury lawyer to handle their case or deal with an insurance company on their own. In fact, quite often this question is triggered by a settlement offer made by an insurance adjuster working for the insurer of the person who injured them (ie. an ICBC adjuster following a car accident). It is quite common that an insurance adjuster will make an offer early on, even though the injured person is still recovering and does not know the full extent of their injuries and how their life will be affected. Remember, in many cases settling early on only benefits the insurance company, not the injured person.
One of the biggest reasons why it is difficult if not impossible to answer this question early on after an injury is that “non-pecuniary damages” (commonly referred to as “pain and suffering” damages or compensation) depend upon many factors that may change or be affected over time as one recovers from their injury or injuries. That is why it is very risky for an injured person to settle their case too soon as they may end up getting far less compensation than they are entitled to.
In reasons for judgment released by the BC Supreme Court this past Friday (Simmavong v. Haddock, 2012 BCSC 473), Mr. Justice Greyell referenced a number of past decisions which summarize the principles and various factors that courts consider when assessing the
amount of compensation for one’s pain and suffering.
amount of compensation for one’s pain and suffering.
Non-pecuniary damages are awarded to compensate the injured person for pain, suffering, loss of enjoyment of life and loss of amenities and the award should be fair and reasonable to both parties (fairness is measured by reviewing comparable cases but each case depends on its own unique facts):
[65] Madam Justice Ker summed up the purpose of non-pecuniary damages inTrites v. Penner, 2010 BCSC 882 as follows:
[188] Non-pecuniary damages are awarded to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. The compensation awarded should be fair and reasonable to both parties...
[189] For the purposes of assessing non-pecuniary damages, fairness is measured against awards made in comparable cases. Such cases, though helpful, serve only as a rough guide. Each case depends on its own unique facts...
[Citations omitted.]
[66] The principles underlying an award of non-pecuniary damages were discussed by Madam Justice Gray inDikey v. Samieian, 2008 BCSC 604:
[139] Non-pecuniary damages are those that have not and will not require an actual out-lay of money. The purpose of such an award is to compensate Mr. Dikey for such things as pain, suffering, disability, inconvenience, disfigurement, and loss of enjoyment of life. The award is to compensate him for losses suffered up to the date of trial and that he will suffer in the future.
[140] As stated by the Supreme Court of Canada inLindal v. Lindal (No. 2), [1981] 2 S.C.R. 629 at 637: Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual’s loss is the key and the “need for solace will not necessarily correlate with the seriousness of the injury” (Cooper-Stephenson and Saunders,Personal Injury Damages in Canada(1981), at p. 373). In dealing with an award of this nature it will be impossible to develop a “tariff”. An award will vary in each case “to meet the specific circumstances of the individual case” (Thorntonat p. 284 of S.C.R.).
Courts consider a number of different factors when assessing the appropriate amount of compensation (see below):
[67] InStapley v. Hejslet, 2006 BCCA 34, the Court of Appeal outlined the factors to be considered when assessing non-pecuniary damages, at para.
46:The inexhaustive list of common factors cited inBoyd[Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages includes:
46:The inexhaustive list of common factors cited inBoyd[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 BCCA 54).
[68] The assessment of non-pecuniary damages is necessarily “influenced by the individual plaintiff’s personal experiences in dealing with his or her injuries
and their consequences, as well as the plaintiff’s ability to articulate that experience”: Dilello v. Montgomery, 2005 BCCA 56 at para. 25.
and their consequences, as well as the plaintiff’s ability to articulate that experience”: Dilello v. Montgomery, 2005 BCCA 56 at para. 25.
As pain is a unique experience to each person, only a knowledgeable and experienced
Vancouver personal injury lawyer who patiently takes the time to listen to you explain how your injuries have affected your life can provide you with an objective and meaningful assessment of your case. Be cautious if an insurance company tries to rush you to settle your case before you know the full extent of your injury or injuries and most importantly, how they will end up affecting your life. If you don’t, you may risk making a decision that you will regret.
If you would like to arrange a free consultation with one of our Vancouver personal injury lawyers at Paine Edmonds LLP to discuss your case further in person or on the phone, please feel free to contact us.
Take care out there!