COLUMN: The price of pain and suffering?

Recovering damages of injuries due to someone’s negligence

By Doug Lester

If you are injured as a result of the fault or “negligence” of someone else, whether it be from a car accident, a slip and fall on some stairs or patio, or whatever, British Columbia law allows for recovery of any damages you may suffer as a result of those injuries. Damages fit into several different categories. The most common and talked about is “pain and suffering.” It’s also known in legal circles as “non-pecuniary” or “general” damages.

Damages for pain and suffering are intended to compensate an injured person for the loss of enjoyment of life caused by the injuries.

My job as a personal injury lawyer is to assess and advocate on behalf of my clients so they can receive the best possible settlement given their particular situation.  General damages can range anywhere from a few hundred dollars to several hundred thousand, depending upon the nature and extent of the injuries, and the impact those injuries have on the individual.

ICBC adjusters will often tell people who are not represented by lawyers that their cases are only worth a certain amount, usually something less than $7,500.  They will sometimes suggest that if an injury is categorized as “mild” or “moderate,” this is the maximum amount they can pay.

Unfortunately, a myth exists that suggests mild or moderate soft tissue injuries are governed by a chart or tariff kept by insurance companies.  Nothing could be further from the truth.  B.C. courts recognize that in dealing with awards of this nature, it is impossible to develop a “tariff.” Awards will vary in each case to meet the specific circumstances of the individual case.

When I initially meet with new clients, I am often asked: “How much is my claim worth?” My response is that the assessment of damages is always a multi-faceted exercise. Before we can express any opinion, we need to see medical reports and obtain opinions from doctors and other medical professionals concerning the seriousness of the injuries involved. It is not until our client is either fully recovered or we have a clear prognosis from the medical professionals that we will advise our clients to consider settlement.

The assessment of personal injury damages in British Columbia is governed by precedents of earlier cases that have been tried in the courts and decided by judges.  We, as lawyers, look to those past decisions to see what judges have awarded other people with similar injuries in the past. In deciding cases for personal injuries, B.C. judges try to look at the individual’s loss as the key, not at a chart.

The British Columbia Court of Appeal has cited an inexhaustive list of common factors that will influence awards for pain and suffering which includes: (a) age of the plaintiff; (b) nature of the injury; (c) severity and duration of pain; (d) disability; (e) emotional suffering; (f) loss or impairment of life; (g) impairment of personal relationships; (h) impairment of physical and mental abilities; and (i) loss of lifestyle. There may also be additional factors unique to a particular individual that could factor into an assessment of general damages.

Most people are not trained to assess damages. The insurance company will not educate you on what is involved in properly assessing the value of your injury claim. Insurance companies, by their very nature, are in the business of reducing risk and lowering their payouts. The adjuster’s job is to close the file as inexpensively and quickly as possible. If you don’t have proper legal advice, you are at risk of selling yourself short.

Doug Lester is a partner with RDM Lawyers LLP in Abbotsford.  Doug practices in the areas of personal injury law and labour and employment law. Questions or comments about this article can be sent to legalease@abbynews.com.