Court Awards | Financial Settlements re Personal Injury & Motor Vehicle Accident Claims in BC
BC Courts & Judgements on Pain and Suffering Awards Component of Personal Injury Cases: What factors do judges consider in assessing the value of the award?
Valuing Pain and Suffering in Personal Injury Cases
One of the central components of a damage assessment in a personal injury case is the assessment of the value of the pain, suffering and loss of enjoyment of life that an individual has endured due to the injuries sustained.
I have many times previously written on this topic as it is one that is central to an understanding of a likely outcome at trial of a determination of damages awardable.
Our Court of Appeal has in recent years commented on the factors to be taken into consideration in assessing the amount to be awarded. The Court of Appeal decision really just confirmed in writing what judges have been doing in practice for years. In assessing pain and suffering, judges look first at the position that the individual was in prior to being injured. They consider what their life was like, what types of activities they participated in and what their health was like.
The judge will then assess how the injury has changed the persons life and will assess what the future holds for them in terms of ongoing symptoms and restrictions due to the injuries. The final step is a judge will look to previous decisions of other judges of similar injuries and will attempt to keep the award that they make consistent with previous awards. Because of this last step, as a lawyer I can get a fairly good sense of what a judge would likely do with a case at trial, at least a good sense of the likely range.
To provide you with an idea of how pain and suffering is assessed what follows is a summary of recent awards for pain and suffering from cases in our courts:
Roy v. Storvick 2013 BCSC 1198 - The plaintiff was a 27 year old carpenter when he was injured in a motor vehicle accident in July 2009. Following the motor vehicle accident he experienced neck and back pain. An MRI ultimately identified both an annular tear and a disc protrusion. He was off work for approximately six months following the accident and found that his work aggravated his pain. The judge found that the plaintiff had suffered moderately severe injuries that affected all aspects of his life, including his mood. He had taken all possible avenues to move is recovery forward. The judge also found that at the time of the injury the plaintiff enjoyed an active lifestyle, participating regularly and enthusiastically in a variety of recreational and athletic activities. Although the plaintiff was able to return to his work following the injury, he was unable to return to any of his previous athletic endeavours. Pain and suffering was assessed at $75,000.
Schoenhalz v. Reeves 2013 BCSC 1196 - the 17 year old plaintiff was injured when she was ejected from a vehicle following a single vehicle accident. She suffered a transverse process fracture of the T2- 3 vertebrae, facial injuries, injures to her teeth, a pelvic fracture and third degree burns to her right leg, thigh and buttocks. She also suffered emotional and psychological problems both as a result of the accident itself and as a consequence of the long term effects of the injuries. She spent almost two months in the hospital and underwent a prolonged recovery period. The scarring that resulted from the burns was significant and made the plaintiff self conscious. They had driven her to isolate herself from previous friendships and made intimacy with her husband difficult. They prevented her from sitting for any period of time an dictated her clothing and some of her day to day activities. Prior to injury the plaintiff was a teenager who had no physical disabilities. She did have emotional difficulties due to her home life, lack of education and substance abuse. If not for the accident, the plaintiff might have changed her life around, but the accident had made it difficult for her to do so. Pain and suffering was assessed at $150,000.
Duifhuis v. Bloom 2013 BCSC 1180 - the plaintiff was 76 years old when she was injured in a motor vehicle accident two and a half years prior to trial. In the accident she sustained soft tissue injuries to her neck and mid back as well as her left arm. The plaintiff had pre existing degenerative changes to her neck which were only minimally symptomatic prior to the accident and were much worse after the accident. The judge found that the plaintiffs current symptoms were more significant than the symptoms she had before the accident and that she was considerably more limited in her activities at the time of trial than before the accident. The judge concluded that the pre existing disc disease was responsible for 20 percent of the plaintiffs current neck problems and assessed pain and suffering at $35,000.
Dobbin v. Siewert 2013 BCSC 1153 the 27 year old plaintiff was injured in a head on collision four years prior to trial. The impact was significant. The plaintiffs injuries included burns to her forehead and left arm from the air-bag, neck, upper back, hip, shoulder and shoulder blade pain, bruising from the seat belt, bruises to her face, bruised spleen and sore knees. She was nauseous for a month following the accident and experienced migraine headaches three to four times per week. The judge concluded that she had suffered moderate soft tissue injuries to her neck, shoulders and back and that she continued to suffer from pain and anxiety at the time of trial. Damages for pain and suffering were assessed at $60,000.
Campbell v. Van Den Brook 2013 BCSC 1754 - the 61 year old plaintiff was injured in a motor vehicle accident which occurred three years prior to the trial. Prior to the accident the Plaintiff suffered from a variety of physical ailments. She as however able to function and carry out the demands associated with her work. The trial judge found that following the motor vehicle accident the plaintiff suffered from chronic jaw pain, pain in her knees that was an activation or aggravation of clinically silent osteoarthritis, vestibular problems affecting balance and coordination, aggravation of a pre existing neck problem which had returned to its pre accident status, problems with her feet and a worsening of pre existing anxiety and depression. The judge found that the plaintiffs injuries were superimposed on medical conditions that were temporarily aggravated but had returned to pre accident levels. The judge awarded $90,000 for pain and suffering after finding that the accident contributed to meaningful incremental changes in the plaintiffs psychological anxiety and distress which had significantly impacted her enjoyment of life and her energy.
Musgrove v. Elliot, 2013 BCSC 1707 - the 41 year old man was injured in two motor vehicle accidents in 2008. The trial judge fund that the evidence proved that the plaintiff suffered soft tissue injuries in the first accident, which were aggravated by the second accident. Those injuries acted upon a degenerative condition in the plaintiffs neck. The plaintiff had no appreciable symptoms due to that degenerative condition prior to the accident. Pain and suffering was assessed at $60,000.
DeGuzman v. Ge 2013 BCSC 1450 - the plaintiff, who as 53 at the time of trial, had been injured in a motor vehicle accident two years prior to the trial. The trial judge found that prior to the accident she had a physically demanding job and enjoyed a relatively active life away from work. Although her pain had reduced since the accident, she continued to have significant discomfort from her injuries, which had detracted from her enjoyment of her work and her relationship with her co workers. It had also limited the activities she used to enjoy doing away from work, such as cooking, keeping her house and yard, walking, driving for pleasure and caring for her grandnieces. The award for pain and suffering was $50,000.
Fontaine v. Van Kampen 2013 BCSC 1702 - The plaintiff was in her early 20s when she was injured in a motor vehicle accident in 2007. At the trial, 6 years after the accident, the judge found that the plaintiff continued to suffer from neck and back pain, ongoing disruption to her sleep and a decline in her mood and emotional health. The plaintiff had a pre existing degenerative spine which the judge found would likely have remained asymptomatic if the motor vehicle accident had not occurred. The effect of the accident continued to practically completely prevent the plaintiff from participating in the intense physical activities she once enjoyed, including ice hockey. $75,000 was awarded to compensate the plaintiff for her pain, suffering and loss of enjoyment of life.
Abbott v. Glaim 2013 BCSC 1723 - when the plaintiff was 43 years old she attended a party where she was assaulted by the defendant. The assault resulted in bruising down the side of her body, a cut to her head which required 6 stitches and an undisplaced fracture of her arm. The arm fracture was treated with a cast for two and a half months. At trial 7 years after the assault the plaintiff continued to experience occasional difficulties with the wrist. The trial judge noted that the plaintiff as sufficiently healed 15 months post assault that she was able to return to full time work. Damages for pain and suffering were assessed at $35,000.
Andrusko v.Alexander 2013 BCSC 985 - The Plaintiff was 21 years old when he was injured in a motor vehicle accident in January 2008. At his trial five years later the judge found that he had suffered injuries to his neck ad shoulder which were largely resolved within a year of the accident, although pain in those areas continued to flare up from time to time, about once per week, when the pain was severe. The plaintiff also suffered injuries to his low back and had constant pain in that area which as at times severe. In conjunction with the low back pain the plaintiff suffered from persistent numbness in his left leg on a regular basis. Further improvement in the plaintiffs symptoms was unlikely and his condition was now chronic. $80,000 for pain and suffering was awarded.
Gatzke v. Sidhu 2013 BCCA 261 - The plaintiff suffered an aggravation of a previously symptomatic knee condition, a concussion and other soft tissue injuries in a motor vehicle accident. The court found that the injuries had fully resolved within one year and awarded $25,000 for pain and suffering.
Neigel v. Weiler 2013 BCSC 1033 - The 36 year old female plaintiff was injured in an accident that had occurred four years prior to trial. She was continuing to experience symptoms at the time of trial. The injuries found to have been suffered in the accident included whiplash injury to the neck, muscle spasm of the neck shoulder girdle region, injury to the mid back and mechanical low back pain. Full recovery from the injuries was not expected.
Lees v. Compton 2013 BCSC 1015 - 5 years prior to trial the 20 year old plaintiff suffered soft tissue type injuries to her neck and mid back. At the time of trial the plaintiff remained symptomatic and the medical evidence suggested that although there may be further improvement in her symptoms the plaintiff was going to be left with her current symptoms for the long term. The judge awarded $45,000 for pain and suffering finding that the consequence to the plaintiff of her injuries was not as significant as she claimed.
Dunn v. Lynn 2013 BCSC 1017 - the 38 year old plaintiff was injured in a motorcycle accident that occurred five years prior to trial. The accident resulted in a significant pelvic fracture. The plaintiff as hospitalized for ten days following the accident, spent the first two months in bed or a wheelchair and was disabled from work for a year. The medical evidence indicated that she would be left with chronic pain but that the pain could be controlled with pain medications. An award of $100,000 for pain and suffering was made.
Rose Keith, Barrister & Solicitor author of the above article is a content contributor to CanadaLegal.info.
Her practice in Vancouver focuses primarily on the areas of Personal Injury Law (as a plaintiff's lawyer) and BC Employment / Contract Disputes
where she represents both employees and employers.
A detailed street map to her offices in downtown Vancouver showing her location and its proximity to the Provincial and Supreme Court buildings is available click here
See also her web site at www.rosekeith.bc.ca
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