Pain & Suffering Claims in B.C.
In the ten years I have been practicing personal injury law, I have often been asked by my clients during our initial consultation; “So… what do you think mycase is worth?” My response is usually; “I don’t know.” And my thoughts often turn to snowflakes. Why snowflakes? Perhaps a brief explanation of the law is in order before I answer that question.
Different types of awards
“So… what do you think my case is worth?” is an impossible question to answer at the initial visit with a client as there are months, sometimes even years of medical and financial information to review in order to form an opinion to answer such a question. Furthermore, there are different types of awards that a particular case may or may not attract. The easier evaluations are those that involve figuring someone’s past wage-loss or future wage-loss or their out-of-pocket expenses. These types (or “heads”) of damages are known as pecuniary damages. We simply crunch some numbers we get from tax returns, or punch cards, or receipts and we come to a total. What is more difficult to calculate is the non-pecuniary, or general, damages portion of our clients’ claims.
Non-pecuniary Damages vs Pain & Suffering
The term non-pecuniary damages (or general damages) is something that is unfamiliar to most Canadians, as most of us are more familiar with the American term “pain and suffering”. So how do we as lawyers calculate an appropriate sum of money for someone’s pain and suffering. The easy answer is that we try to find similar cases that have gone before the courts, where non-pecuniary damages have been awarded. However, this is often a difficult task as there are no two cases exactly alike. It would be like trying to find two snowflakes that are alike. It is impossible! So what we do is try to find cases that are as similar as possible to each of our clients’ claims. So what do we look for?
What we look for
Before we head down that road of what to look for, we first need to understand the underlying reasoning behind awarding money for pain and suffering. In Lindal v. Lindal, 1981 CanLii 35 (SCC), the Supreme Court of Canada stated;
“… 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… An award will vary in each case “to meet the specific circumstances of the individual case”
Simply put, we cannot simply compare the type of injury our clients sustain in the accident and look for similar injuries that courts have been asked to examine in the past, and then advise our clients, for example; “since the courts have awarded x for a broken arm in the past, the broken arm you sustained in the accident is also worth x.” A broken arm to someone who is 60-years-old is likely more limiting to him or her than it is to a 16-year-old person. Equally, a broken arm to that same 60-year-old person is likely going to take more time to completely resolve than that of a 16-year-old person.
Clearly, awarding the same compensation to both individuals in our scenario would be greatly unfair. The analysis must go beyond the type of injury sustained, we must take into account the age of the injured person, the duration of injury, and the impairment of the injury on the individual’s life, to name a few of the “specific circumstances of the individual case” mentioned by the Court in Lindal v. Lindal. The B.C. Court of Appeal in the case of Stapley v. Hejslet 2006, BCCA 34 (CanLii) provided an inexhaustive list of “specific circumstances” of each case the courts must examine when determining an appropriate award for non-pecuniary damages. They are;
10 factors set out by the B.C Court of Appeal
- Age of the Plaintiff;
- Nature of the Injury;
- Severity and Duration of pain;
- Emotional suffering
- Loss or impairment of life
- Impairment of family, marital and social relationships;
- Impairment of physical and mental abilities;
- Loss of lifestyle; and
- The Plaintiff’s stoicism
These ten factors set out by the B.C Court of Appeal are the guidelines that we as lawyers must use in order to find cases that are similar to our own clients’ particular case (and this is for each individual client), to form an opinion as to the “value” of their “pain and suffering.” We’ll never find a case that is exactly the same as to the specific circumstances of our client’s claim.
Importance of Passage of time
Furthermore, Things like the duration of pain, impairment of life, emotional suffering, loss of lifestyle, and impairment of family, marital and social relationships can only be determined with the passage of time. Therefore, the more time passes for each particular case, the better position that we, as lawyers, are in to form an opinion as to the value of each client’s pain and suffering. Again, using our snowflake analogy, allowing the water to freeze first and ultimately transform into a snowflake, which can only happen with the passage of time, puts us in a better position of knowing what to look for when trying to find similar snowflakes.
“So… what do you think my case is worth?” is a question that is impossible to answer with any accuracy without first knowing all “specific circumstances” of your case, which in many situations can only be determine with a significant passage of time.