Valuing Pain and Suffering
I have written many previous blog posts explaining how our courts value pain and suffering in determining awards to injured plaintiffs. One of the fundamentals of the award is that the award must be fair and reasonable to both parties. Our Court of Appeal has listed a variety of factors that are to be taken into consideration in making the award, those factors include the age of the plaintiff, the nature of the injury, severity and duration of 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.
The recent British Columbia Supreme Court decision in Ponsart v. Kong illustrates how these factors are assessed in determining an appropriate award for pain and suffering. The young female plaintiff was injured in two motor vehicle accidents, the first of which occurred five years prior to the trial and the second three years later. The trial judge’s conclusions with respect to the injuries suffered by the plaintiff and their impact on her are summarized at paragraph 80 as follows:
…The plaintiff was relatively young when the accidents occurred; she is likely to suffer a mild degree of pain in her neck and back for the foreseeable future. However, the pain is not disabling. She is able to work and take part in most recreational activities. For a period of time, her relationships with family and friends were impaired but she now seems to have re-engaged socially in a positive way. She also suffered emotionally as a result of the accidents in part because of her anxious predisposition. However, I accept Dr. Riar’s opinion that as her psychological symptoms improve so will her pain condition and she will be better able to deal with any residual symptoms.
The trial judge found that the plaintiff suffered a Grade II strain of her neck and low back and in addition experienced significant anxiety and depression. By the spring of 2016 the plaintiff’s physical condition was manageable but her pain had become chronic. She was left with a minor degree of chronic neck and low back pain. By the time of trial she was able to manage all tasks of daily living and most of her recreational pursuits most of the time. However, because of the accidents she was now more susceptible to anxiety and depression. The judge found that an appropriate award for pain and suffering in the circumstances was $85,000.