Category: Appeals: Non-Pecuniary Damages

Court Of Appeal Upholds Low Non-Pecuniary Damages Award

The vast majority of ICBC injury claims do not make it all the way to a trial, the main reason being the high risks for both sides with respect to potential costs consequences. Of those ICBC injury claims that do in fact make it to a trial, very few are actually appealed, as it is for the most part quite difficult to succeed on an appeal, particularly on issues of credibility, findings of fact, and awards for non-pecuniary damages.

 

In Paskall v. Scheithauer, the Plaintiff was injured as a pedestrian when she was struck by a motor vehicle. She consequently brought an ICBC claim for damages for pain and suffering, as well as various other types of damages. The Plaintiff suffered a temporal skull fracture, a basal skull fracture, and a traumatic brain injury. At trial, a quite low amount was awarded for non-pecuniary damages. The Plaintiff appealed, however the British Columbia Court of Appeal dismissed the appeal, holding that while the amount for non-pecuniary damages was low, it was open to the jury to set that amount. The Court of Appeal also noted that it was apparent from the award that the jury did not believe that the Plaintiff had serious, ongoing adverse effects. The Court of Appeal further stated that an award for damages is a question of fact, to which the Court of Appeal owes deference to the fact finder.

 

[25] The appellant contends that the award of $35,000 for non-pecuniary damages was unreasonable. She asserts that this amount would be at the low end of damages for a soft-tissue injury. In the present case, she suffered a skull fracture, traumatic brain injury and hearing loss. She states that the award failed to take into account “the magnifying effect of the injuries on the [appellant’s] pre-existing limitations”.

[26] The respondent concedes that the appellant suffered serious injuries, but he states that is not the issue. The issue is the effect of those injuries on the appellant.

[42] The injuries sustained by the appellant were significant, but there is no schedule for an award of non-pecuniary damages based on the nature of the injuries sustained. The function of damages in tort is to put the claimant into the position she would have been in had the tort not occurred. Compensation for the trauma and pain of her injuries is required, but further c