Determining awards for pain and suffering

A component of any personal injury claim is the claim for non pecuniary damages, or for compensation for the pain, suffering and loss of enjoyment of life experienced by a plaintiff following injury.  Reasons for judgment were released today in the case of Cantwell v. Warren and in this decision, Mr. Justice Macintosh provides a great summary of the principles that are applied by the courts in determining an award for pain and suffering.  This case concerned the claim of a 29 year old woman who was injured in a motor vehicle accident in 2011. In analyzing the claim for non pecuniary damages, Justice Macintosh quote from the decision of Saunders J. in Khudabux v. McClary as follows:

[143]  The purpose of non-pecuniary damage awards in personal injury cases was summarized recently by Mr. Justice Jenkins in Bove v. Wilson, 2016 BCSCV 1620:

[41]  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 to all parties, and fairness is measured against awards made in comparable cases (Trites v. Penner, 2010 BCSC 882 at paras. 188 – 189; Andrews v. Grand & Toy Alta. Ltd., [1978] 2 S.C.R. 229 at paras. 243 – 44).  Such cases, though helpful, serve only as a rough guide.  Each case depends on its own unique facts (Trites).

[42]…The factors emphasized by Madam Justice Kirkpatrick in Stapley v. Hejslet, 2006 BCCA 34, have been referred to and followed by judges of this court on many occasions and are most instructive in assessing non pecuniary damages…

[144]  In Stapley, Kirkpatrick J.A. stated:

[45]  Before embarking on that task, I think it is instructive to reiterate the underlying purpose of non-pecuniary damages.  Much, of course, has been said about this topic.  However, given the not-infrequent inclination by lawyers and judges to compare only injuries, the following passage from Lindal v. Lindal, [[1981] 2 SCR 629] at 637 is a helpful reminder:

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” (Thornton at p. 284 of S.C.R.)…

[145]  Personal injury damages are compensatory, or restitutionary; as with all tort damages, they are intended to restore an injured plaintiff, as much as can be done through a monetary award, to the state they would have been in had the injury never occurred.  The assessment of damages entails a comparison of the plaintiff’s current state with what the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458, termed the plaintiff’s “original position”.  To ensure that a defendant justly compensated a plaintiff, consideration of this “original position” entails not only an examination of the plaintiff’s condition at the time the subject injury is sustained, but also consideration of what condition the plaintiff would have gone on to attain but for the defendant’s conduct…

The above provides a great explanation of the process that is undertaken in assessing an award for pain and suffering.  The first step is an analysis and understanding of the plaintiff’s original position and what that condition would have been without the injury.  Consideration of the loss that the individual has suffered then follows with an assessment of what award will be necessary to meet the specific circumstances of that individual.  This decision highlights the individual nature of any award of pain and suffering.

In our newsletter and on this blog we often will review decisions of judges and explain the awards that are made for pain and suffering in any particular case.  As is noted in this decision, while those decisions help in understanding the various factors that go into the assessment and help in understanding the way in which a claim for pain and suffering is valued, every case is judged on its own particular circumstances and an award in one case will not necessarily be determinative of an award in another case.

2017-11-27T21:39:31+00:00 May 24th, 2017|Uncategorized|