If you have suffered an injury due to someone else’s negligent act or omission, you may be entitled to compensation to help you recover financially. Compensation may be available in various situations relating to different types of loss, such as lost wages, the cost of future care, reduced future earning capacity and pain and suffering.
This blog post will look at damages available to compensate for pain and suffering, also known as non-pecuniary damages, along with the factors to be considered when calculating such awards.
What are non-pecuniary damages?
Non-pecuniary damages are a type of compensation awarded by courts to individuals who have suffered a personal injury at the hands of a negligent defendant. Unlike pecuniary losses, this type of loss cannot be measured in monetary terms.
Non-pecuniary damages are awarded for intangible losses, including pain and suffering caused by the injury and loss of amenities, which refers to the plaintiff’s reduced ability to perform activities.
How are non-pecuniary damages calculated?
Since these types of losses cannot be measured precisely in monetary terms, the amount of non-pecuniary damages is estimated by courts after considering all of the relevant factors. In practice, the parties may suggest a monetary range by looking at previous cases involving similar injuries and circumstances. Non-pecuniary damages are normally awarded as a lump sum payment.
More serious injuries tend to attract higher amounts of compensation. However, the same injury can lead to different awards of non-pecuniary damages for different plaintiffs. For example, a higher award may be justified for a young, active plaintiff that can no longer engage in sporting activities or an amateur musician that can no longer play instruments.
Is there a cap on non-pecuniary damages?
The Supreme Court of Canada, in the 1978 case of Andrews v. Grand & Toy Alberta Ltd., said:
“The sheer fact is that there is no objective yardstick for translating non-pecuniary losses, such as pain and suffering and loss of amenities, into monetary terms. This area is open to widely extravagant claims. It is in this area that awards in the United States have soared to dramatically high levels in recent years. Statistically, it is the area where the danger of excessive burden of expense is greatest.”
The Court capped the amount of non-pecuniary damages at $100,000 “save in exceptional circumstances.” This amount has been increased over the years to account for inflation and is currently in the order of $400,000.
British Columbia also has a legislated cap on non-pecuniary damages for “minor injuries” sustained in motor vehicle accidents. Under the Minor Injury Regulation, the cap on non-pecuniary damages was $5,500 when it was introduced in 2019 (this amount is also adjusted for inflation).
Young plaintiff sustained moderate soft tissue injuries in a motor vehicle accident
The recent decision of the Court of Appeal for British Columbia in Callow v. Van Hoek-Patterson provides an example of how non-pecuniary damages are calculated for personal injury victims.
In 2014, the defendant struck the plaintiff’s vehicle from behind. The accident resulted in the 20-year-old plaintiff sustaining moderate soft tissue injuries to his neck, upper back, and shoulders, which, despite treatment, remained symptomatic.
The defendant admitted liability, and the trial dealt with the appropriate amount of damages for pain and suffering and the cost of future care.
The trial judge assessed non-pecuniary damages at $35,000
At trial, the plaintiff testified that sport and exercise were important aspects of his life. He had played on a team at the University of Victoria for two years. After the accident, he attended physiotherapy treatment and returned to recreational soccer and jogging but continued to experience pain. The judge found that “the likelihood of future material improvement [was] poor, but not impossible.”
The plaintiff sought non-pecuniary damages between $70,000 and $88,000, whereas the defendant asked the court to award between $30,000 and $40,000. Each party supported its range with a list of previous decisions awarding similar amounts to plaintiffs that they claimed were in a similar position to the plaintiff in this case.
The judge considered a range of factors, including the plaintiff’s:
- age;
- injury;
- pain severity and duration;
- emotional suffering; and
- impairment of relationships and abilities.
Based on consideration of the above, the Court awarded non-pecuniary damages of $35,000 as the judge thought that the cases cited by the defendant were more similar to the plaintiff’s circumstances.
Court of Appeal decided that the amount of non-pecuniary damages was inordinately low
The plaintiff appealed, arguing that $35,000 was inordinately low compared to awards in similar cases.
The Court of Appeal examined the cases cited by each party and also took account of other recent decisions of the Supreme Court of British Columbia in personal injury compensation cases. The Court summarized the plaintiff’s situation as a person in their 20s who sustained moderate soft tissue injuries, which despite treatment, remained symptomatic and will likely continue in the future and will require monitoring.
The Court of Appeal considered that the plaintiff and defendant had selected high and low cases, respectively, and had left out the most helpful case authorities. As a result of the cases identified by the Court, it decided that the amount of non-pecuniary damages awarded by the judge was inordinately low.
Plaintiff’s award of non-pecuniary damages increased to $55,000
The Court of Appeal decided that, based on the more recent cases identified, the appropriate range of non-pecuniary damages was between $50,000 to $60,000. It split the difference and changed the plaintiff’s award of non-pecuniary damages from $35,000 to $55,000.
Contact Meridian Law Group in Vancouver for Trusted Representation in Personal Injury Claims
The experienced personal injury lawyers at Meridian Law Group in Vancouver understand the importance of obtaining the maximum compensation possible to allow their clients to move forward following an accident. The team provides comprehensive advice on personal injury claims and effectively advocates on behalf of their clients, allowing clients to focus on their recovery. To determine whether you have a personal injury claim, please call us at 604-687-2277 or contact us online to schedule a confidential consultation.
