Often in a car accident, there are two types of injuries. At DBM, our Coquitlam Personal Injury Lawyers have seen our share of both. The straightforward type is the one that can be seen, measured, treated and, most of the time, healed fairly quickly. These can include cuts, bruises, broken bones, and many (but not all) soft tissue injuries.
Compensation for these injuries is usually pretty easy to determine. The cost of physiotherapy, prescriptions, and even recuperation time off work can be matched accurately. They are what is called in the legal profession, “pecuniary damages.”
But there are other types of injuries that are called “non-pecuniary.” These are the “pain and suffering” injuries and are generally harder to compensate for.
Here are the five key things you should know about claiming pain and suffering damages.
1. What exactly is “pain and suffering” in an injury situation?
These are injuries that are either intense, long lasting, or both. For example, a young man is in a car accident who severs his spine, leaving him a quadriplegic for life.
Or a woman suffers third degree burns, disfiguring her.
Or a person who suffers brain damage, PTSD or other debilitating physical, emotional or psychological effect from the injury.
2. How much is your pain and suffering worth in an ICBC claim?
That’s the hardest question, because there is no set amount. It depends on the nature of the injury and the type and severity of the pain and suffering you have. ICBC has experienced claims adjusters who will do their best to negotiate a low settlement, so you should make sure you’re prepared. Many people in these circumstances turn to lawyers to negotiate for them.
One of the most common ways to put a value on pain and suffering is to for claims and injuries that are like yours, and to see how much those people were awarded by ICBC. These are available at the BC Supreme Court in Vancouver. However, sometimes you can find representative cases online. Just make sure the eamples you are looking at are from BC courts.
3. What factors do judges consider in deciding pain and suffering awards?
The BC Court of Appeals clearly sets out the factors they use to determine awards:
- Age of the injured. The younger the injured person, the longer they are likely to suffer from the effects of the injury.
- Nature of the Injury. How bad the injury is, and what effect it is likely to have on the injured person’s life.
- Severity and duration of pain. How badly the injury hurts and how long it has lasted or is likely to last.
- Disability. The injury has caused a disability such as a loss of limb or vision, brain damage or other permanent effect.
- Emotional suffering. How the injury and its effects have impacted the emotional well-being of the injured person.
- Loss or impairment of life. The injury resulted in death or severely impaired the quality of life, quadriplegia, for example.
- Impairment of family, marital and social relationships. The physical, emotional or psychological effects of the injury has caused permanent damage to relationships. PTSD has been know to cause impairment of relationships.
- Impairment of physical and mental abilities. The injured person cannot physically do what they could before the accident, or the accident caused brain damaged which limits the person’s mental capabilities.
- Loss of lifestyle. The injury prevents the person from enjoying the same activities they did before the accident. For example, playing sports, or music, or being able to work in their own garden.
The Plaintiff’s stoicism. How well the injured person is coping with the injury should not have an impact on how much in damages they receive.
4. Does it matter how much time has passed since the accident?
Yes. Many of the ten factors we mentioned above that the courts use to award damages can really only be determined over time. So the more time that passes without the symptoms going away or getting a lot better, the easier it is for the courts to see that the injury truly deserves a proper settlement.
5. Is there a limit to the amount of damages courts can award?
Yes. In Canada, the most anyone can receive is $362,000. This amount is awarded only to the most severely injured. With rising costs, it is often not enough.
At DBM, we recommend that anyone who is injured badly enough to have ongoing pain and suffering should talk to legal representation about your rights and obligations. You have suffered enough, you shouldn’t have to suffer to be fairly compensated for your pain and suffering.