The new ICBC minor injury caps passed by the NDP have been reviewed in several previous blog posts.
In short, the term “minor” is extremely misleading because the list of injuries that are considered minor through this new law includes injuries that are not minor at all such as lifelong chronic soft tissue injuries if there is no serious ongoing impairment lasting for longer than 1 year.
The ICBC minor injury cap of $5,500.00 for pain and suffering applies only to injuries suffered in motor vehicle accidents which occur on or after April 1, 2019. It does not apply to motor vehicle accidents which occurred up until March 30, 2019.
The ICBC minor injury caps are inconsistent and an insult to established law which sets out the proper and appropriate range of damages. There is no specific manner to calculate damages for pain and suffering. Instead, guidance on what is fair and appropriate is taken from a review of case law to determine a range. Cases with similar facts and circumstances (similar aged injured claimants, similar injuries, similar impact on life from the injuries) are most informative and establish a range of what is fair and reasonable.
In the recent case of Lluncor v. Anderson 2020 BCSC 767, the injured claimant suffered a soft tissue injury to his low back in a motor vehicle accident. After reviewing the expert evidence of several medial experts, the trial judge found that his low back pain had continued since the accident until trial (5.5 years) and that his symptoms were intermittent. Intermittent means that the pain is not constant, but rather that the pain “comes and goes” depending on activity. The trial judge also found that there was a favourable prognosis for further recovery with more treatment. In other words, the trial judge did not accept that the injuries were unlikely to resolve, but rather that they would resolve with time. Damages for pain and suffering were awarded in the amount of $72,500.00.
In the judgement, the trial judge listed a number of cases provided by the injured claimant’s counsel and by ICBC which set out a range of damages for consideration:
[110] Awards made by courts in other cases provide guidance and frameworks that can be considered in other cases. Nonetheless, each individual is uniquely impacted by injury, symptoms and the impact of same on their lives. It is the plaintiff’s personal experience in coping with injury and the plaintiff’s ability to articulate their experiences that underlie the assessment: see Dilello v. Montgomery, 2005 BCCA 56, at para. 25.
[111] The plaintiff provided a number of authorities he believes include parallels to his circumstances that should convince the court to award non-pecuniary damages of $85,000. These include:
1. Andrusko v. Alexander, 2013 BCSC 985, award of $80,000: the plaintiff suffered injuries to his neck and shoulder, which were largely resolved within one year, but flared up about once per week, and injuries to his low back resulting in constant, sometimes severe pain and regular persistent numbness in his left leg. The injuries were chronic. The plaintiff was a young man, with a physical job; the court remarked that he was stoic and worked through the pain.
2. Ju v. Morpurgo, 2019 BCSC 194 [Ju], award including housekeeping capacity claim of $80,000: the plaintiff suffered soft tissue injuries to her neck, right shoulder and low back; the symptoms were likely to continue into the foreseeable future.
3. MacAulay v. Field, 2014 BCSC 937, award of $75,000: the plaintiff was a very physically active 47 year old woman pre-accident and the accident took away her enjoyment of many recreational pursuits which were the center of her social life with family and friends. Her pain, including back and neck pain, was unlikely to ever disappear completely.
4. Demarzo v. Michaud, 2010 BCSC 255 award of $85,000: the plaintiff sustained a significant lower back injury and was expected to continue to experience intermittent pain. The plaintiff was unable to return to her former work as a landscaper or any of her former recreational activities at the same level, which was an important part of her life pre-accident. The accident depressed the plaintiff’s mood, leading to issues in her marriage.
[112] In contrast, the defendants rely on six authorities in suggesting that non-pecuniary damages be awarded in the range of $30,000 to $40,000. The defendants contend these authorities better inform the court with regard to damages this plaintiff is entitled to recover:
1. Janda v. Mackenzie, 2018 BCSC 168, award of $40,000: the accident aggravated previous injuries and caused new soft tissue injuries; the plaintiff’s soft tissue injuries were effectively resolved by trial with the potential for flare- ups of pain. The plaintiff had significant ongoing shoulder difficulties that were attributable to a previous accident. None of the injuries caused by the subject accident interfered with his ability to work (as a truck driver).
2. Rogalsky v. Harrett, 2014 BCSC 1255, award of $35,000: the plaintiff suffered several injuries including moderate soft tissue injuries, a rotator cuff tear, resolved thoracic outlet syndrome and carpal tunnel syndrome; she had persistent intermittent headaches associated with her neck, back and shoulder pain. The plaintiff was still able to participate in her pre-accident activities, but to a reduced degree and with diminished enjoyment.
3. Dizon v. Losier, 2017 BCSC 431 [Dizon], award of $30,000: the plaintiff suffered pain and discomfort for 18 months, after which he fully recovered except for some stiffness. Prior to recovery, the plaintiff’s participation in his pre-accident recreational activities was reduced.
4. Pavan v. Guolo, 2016 BCSC 324, award of $40,000: the plaintiff suffered injuries to his right arm that were unlikely to fully resolve, however the injuries caused only momentary discomfort while performing certain activities. He suffered injuries to his right shoulder that were recovered other than occasional flare ups and mild low back pain that had resolved a few months after the accident.
5. Zajaczkowski v. Grauer, 2014 BCSC 711, award of $40,000: the plaintiff suffered lower back pain that persisted to the time of trial, he had worked through the pain and the court accepted evidence that he had become irritable and had difficulty sleeping as a result of the pain.
6. Rabiee v. Rendleman, 2015 BCSC 595, award of $40,000: the plaintiff’s injuries, including soft tissue injuries, were mild in severity but continued longer than expected. The injuries affected the plaintiff’s ability to be physically and socially active, but did not prevent her from working.