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 compensation requires proof of ongoing adverse effects. It is apparent that the jury, in its award of non-pecuniary damages, did not accept that the appellant has serious, ongoing adverse effects.

[43] Although the award for non-pecuniary damages appears to be low, in my view, it was open to the jury to make it. It reflects the jury’s consideration of the fact the appellant was injured seriously and its assessment that her injuries did not have a long-term serious effect. I see no basis on which this Court could interfere with it.


Court Of Appeal Dismisses Appeal For Low Non-Pecuniary Damages

In Kapelus v. Hu, the Plaintiff was injured in a car accident, and initiated an ICBC injury claim for damages for pain and suffering and other heads of damages. The trial judge awarded only $15,000.00 for non-pecuniary damages, also known as damages for pain and suffering. The Plaintiff appealed, arguing that this award was too low, given the evidence that was presented. The British Columbia Court of Appeal dismissed the appeal, ruling that the award made by the trial judge was within the acceptable range of awards for non-pecuniary damages. The Court also discussed the general legal principles that the Court of Appeal considers when hearing an appeal in general, and an appeal on an award for non-pecuniary damages.


[14]        It is, moreover, apparent from a review of the record that Mrs. Kapelus provided very little assistance to the trial judge that would have helped him more thoroughly understand the nature of her injuries.  Her own evidence is cursory, at best.  The only inference that I can draw is that Mrs. Kapelus must have thought that she could rely on her prior statements to her doctor as evidence of her injuries.  Mrs. Kapelus did not even go so far as to confirm that her statements to the doctor about her complaints were accurate.  The doctor’s report is based quite substantially on her subjective reporting, although it also contained his own observations.  Given Mrs. Kapelus’ failure properly to prove the facts underlying much of the doctor’s opinion, it would have been open to the trial judge to have placed less weight on the medical opinion than he did.  On my review of the record, it does not appear that defence counsel objected to the use of inadmissible portions of the medical records.  In these circumstances, the trial judge was generous in his approach to what can only be described as a woefully inadequate presentation by Mrs. Kapelus of the evidence of her injury in support of her case.


[15]        It is well-settled that an appeal court will interfere with an award of damages by a trial judge if the judge applied a wrong principle of law or if the amount awarded is a wholly erroneous estimate of the damages because it is demonstrably, inordinately high or low.  I am satisfied that the trial judge’s award does not depend on the application of a wrong principle nor is it a wholly erroneous estimate of the damages.


[16]        No two personal injury claims are identical and awarding damages involves an exercise of judgment.  The trial judge was given authorities by both Mrs. Kapelus and the defence.  The cases provided by Mrs. Kapelus involved more severe injuries and more complete evidence about the effect of the injuries on the plaintiff’s life.  Those cases would have provided the trial judge with little assistance in determining a fair award.  The defence provided the judge with several cases: Morrison v. Peng, 2010 BCSC 562 (CanLII), 2010 BCSC 562, [2010] B.C.J. No. 731; Morales v. Neilson, 2009 BCSC 1890 (CanLII), 2009 BCSC 1890, [2009] B.C.J. No. 2823; Ceraldi v. Dathie, 2008 BCSC 1812 (CanLII), 2008 BCSC 1812, 174 A.C.W.S. (3d) 132.  Those cases in turn examine other cases in settling on the awards.


[17]        Having reviewed those cases, it is evident to me that the award for non-pecuniary damages was a fair one, falling well within the range of damages awarded to other plaintiffs with broadly similar injuries.