085452-scales-of-justice

Reasons for judgment were given yesterday in the case of White v. Bysterveld.  The case involved the assessment of damages for a woman who had been injured in a December 2011 motor vehicle accident.  The trial judge described the factors that determine the compensation that is awarded for pain and suffering in the following terms:

[185]  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.  Such cases, though helpful, serve only as a rough guide.  Each case depends on its own unique facts.  (Citation omitted)

[186]  In Stapley v. Hesjlet, 2006 BCCA 34 at para. 46, the Court of Appeal identified a non-exhaustive list of the factors to be considered when assessing non-pecuniary damages.  They include the age of the plaintiff; the nature of the injury; severity and duration of the pain; disability; emotional suffering; loss or impairment of life; impairment of family, marital and social relationships; impairment of physical and mental abilities; and loss of lifestyle.  Generally, stoicism should not penalize a plaintiff.

[187]  The assessment of non pecuniary damages is necessarily influenced by the individual plaintiff’s personal experiences in dealing with her injuries and their consequences, and the plaintiff’s ability to articulate that experience.  (Citation omitted)

The trial judge found that as a result of the motor vehicle accident the plaintiff suffered injury to her neck which resulted in chronic neck pain and headaches.  He also found that the plaintiff has suffered from depression and anxiety as well as persistent vertigo and a mild traumatic brain injury.  In terms of impact of the injuries on her the judge found that she had suffered from memory, concentration and executive functioning difficulties.  Witnesses testified that she no longer functioned at her former high level.  The evidence established that prior to the accident the plaintiff was creative, patient and capable of making important decisions quickly while managing multiple demands on her time.  She now struggles to make decisions, makes mistakes for which she blames others, has memory lapses, is irritable and at times has outbursts of anger.  Her recreational activities have also been limited due to the injuries.  Damages for pain and suffering were assessed at $135,000.