I have been receiving many calls from current clients and prospective clients who are wondering if they will be affected by the new cap on “minor” injuries that is set to take effect on April 1, 2019.

 

It has been reported somewhat inaccurately in some newspapers that Plaintiff’s counsel have been scrambling to commence legal action prior to April 1, 2019, or that Plaintiffs are trying to get whatever they can get for their current files prior to that time.

 

To be clear, the cap on “minor” injuries will only affect people injured in accidents on April 1, 2019, or later. People injured in an accident prior to April 1, 2019, will not be affected by the cap on “minor” injuries.

 

“Minor” injuries are described in Section 101 of Part 7 of the Insurance (Vehicle) Act , and Section 102  confirms that Part 7 applies to an accident occurring on or after April 1, 2019.

 

The new cap will not automatically be in place for perpetuity. A constitutional challenge will be launched in the Supreme Court of British Columbia, and the losing party there will undoubtedly appeal to the Court of Appeal of British Columbia, with the losing party there likely seeking leave to appeal to the Supreme Court of Canada. It thus could be quite a lengthy period of time before it is known whether or not the cap that will take effect on April 1, 2019, will remain law in British Columbia.

 

Similar legislation introducing a cap on “minor” injuries was struck down in Alberta as being unconstitutional, but this decision was later reversed on appeal, and leave to appeal to the Supreme Court of Canada was denied.

 

Since the news was announced by the provincial government that major changes are coming with respect to ICBC payouts for injury claims, most notably a cap of $5,500.00 for pain and suffering on minor injury claims, I have had many calls from clients wondering how their current claims will be affected.

 

The new changes are set to take effect in the form of legislation on April 1, 2019. Any motor vehicle accident occurring prior to that time will not be affected by the new cap.

 

It is interesting to note that, even under the new system, if you elect to pay an additional $1,300.00 per year in insurance premiums on top of your regular premiums, then you would be entitled to a cap of $75,000.00 for pain and suffering, even if your injuries are “minor” in nature.

 

It is worthy to note that the new cap will not affect awards for income loss or costs of medical treatment.

 

What is a “minor” injury ?

 

However, it remains to be seen as to what constitutes a “minor” injury. It is expected to include strains, sprains, soreness, bruising, as well as anxiety and stress arising from an accident. It is expected that ICBC itself will develop the definition of “minor”, and that a medical professional, not ICBC, will determine whether the nature of an injury is classified as “minor”. Who this “medical professional” will be, however, remains to be seen.

 

A driving force behind the new legislation is the government’s desire to have claimants not seek legal representation, which in turn requires ICBC to appoint counsel as well to defend claims. 24% of ICBC’S alleged financial woes are accounted for by legal costs.

 

More serious injuries, such as concussions, fractures, ligament tears, nerve damage, and other forms of objective injuries will not fall within the purview of the cap.

 

If there is a dispute as to the classification of an injury as “minor”, a claimant will be required to submit their dispute to the B.C. Civil Resolution Tribunal. Pursuant to section 20 of the Civil Resolution Tribunal act, however, the general rule is that claimants are to represent themselves. This is further proof of the government making every effort possible to see that claimants do not get lawyers to represent them.

 

Other notable changes include :

 

An increase from $150,000.00 to $300,000.00 for accident benefits in the form of medical care and recovery costs; this is a hardly a concession, as it is quite rare that any claimant would even require up to the original amount of $150,000.00.

 

An increase from $300.00 weekly to $740.00 for weekly for interim income loss compensation. Although it may be more helpful to claimants on an interim basis, this will not make any difference to the amount of money ultimately paid out to a claimant for the balance of income loss at settlement time.

 

An increase to the amounts covered for treatment costs, so that claimants don’t have to pay as much of their own money for “user fees” along the way. “User fees” are reimbursed at settlement time anyways, so this can hardly be seen as a major improvement for claimants, who in many cases already have assistance with “user fees” on an interim basis prior to settlement time.

 

An increase in homemaker benefits from $145.00 per week to $280.00 per week. ICBC does not always accommodate such requests in any event, and often insists on occupational therapists visiting your home and asking a wide variety of questions, which many claimants find invasive.

 

Once the new law is passed on April 1, 2019, rest assured that there will be a court challenge brought by the Trial Lawyers Association of British Columbia. There is some legal precedent with respect to challenging legislation that seeks to strip motor vehicle accident victims of their rights. When the Alberta government passed similar legislation, it was challenged in court, where the legislation was deemed unconstitutional by Justice Wittmann, who commented that the legislation “sacrifices the dignity of Minor Injury victims at the altar of reducing insurance premiums“. However, the Alberta Court of Appeal reversed the decision, and leave to appeal to the Supreme Court of Canada was denied.

 

Although the current government will be implementing the new changes, it will ultimately be left to the Courts to decide whether a cap on pain and suffering for “minor” injuries will remain in this province.

In McKay v. Powell and Seher, the Plaintiff was injured in several motor vehicle collisions, and brought ICBC claims for damages. Experts differed in their specific diagnoses of the Plaintiff, however was what certain was that the Plaintiff suffered injuries that detrimentally affected her life. The Court, in its ruling, showed that what is important is the effects of the injuries on the Plaintiff, more so than trying to attach specific monetary value to a specific diagnosis.

 

[44]         Clearly the cumulative effects of the three accidents in this case have placed Ms. McKay in a position where she has chronic pain disorder as stated by Dr. Mosewich, regardless of the lack of consensus as to whether there is possibly a thoracic outlet syndrome or fibromyalgia in play. No expert has ventured a specific prognosis as to complete resolution of her symptoms. Dr. Wade holds out a hope that further rehabilitation with exercises will reduce her symptoms while participating in daily activities, recreation and occupation. Dr. Mosewich recommended regular exercise and physiotherapy, but recognized a continuing need for pain modulating medication. If Dr. Apel’s diagnosis of fibromyalgia is correct, the plaintiff’s condition will wax and wane, but there will be no full recovery.

 

In Travelbea v. Henrie, the Plaintiff was involved in a motor vehicle accident, and brought an ICBC claim for damages for pain and suffering. The court discussed awards for pain and suffering in the context of athletically active claimants, and the effects that injuries can have on these people, as compared to others who do not fall under such a category.

 

[36]         From the foregoing I conclude the following. The plaintiff sustained a mild to moderate soft tissue injury to her neck and upper back. Now, some four years after the accident, it remains painful and limiting. I think it more likely than not that if she commits to the focused stretching that Dr. Laidlow recommended she will increase her level of functioning. I think it more likely than not that if she takes the course of medication, whether nortriptyline or Celebrex, that Dr. Travlos recommended, she will experience an even greater improvement in her functionality. She will, however, be left with residual pain and limitations. I think it unlikely she will ever be able to ride a road bicycle for any appreciable period of time. As a result both that training and triathlon racing will remain beyond her ability. She may be able to ride a bicycle that can be operated in a more upright posture. I think it more likely than not that she will be able to swim and run, albeit not at the level or for the distance she did previously. I think it also likely that with this improvement in function she will recover some of her self confidence and some of the depression which seems to have settled over her will lift.

 

[37]         Ms. Travelbea’s injuries have affected her much more significantly than they would someone whose life did not revolve around the kinds of athletic endeavours she and her husband enjoy. Ms. Travelbea enjoyed training and did it four, five or six days a week. She enjoyed training as much or more than competing. It was in the midst of athletic pursuits that she met her husband. Training was a significant part of their relationship. They trained together and often raced together. It was the focus of much of their social activity. Her ability to train and the level of fitness she was able to sustain as a result was an important aspect of her sense of self worth.

 

When you have been injured in a motor vehicle accident, and you are in no way to blame, you are entitled to “non-pecuniary” (non-financial) damages, which includes pain and suffering, loss of enjoyment of life, and loss of amenities. As no two ICBC claims are identical in their facts and circumstances, awards for pain and suffering can vary.

 

The Court will look at many factors in an ICBC claim in deciding how much to award for pain and suffering.

 

In Parker v Lemmon, the Court, in quoting the Supreme Court of Canada in Lindal, noted the purpose in awarding non-pecuniary damages.

 

[27] In considering non-pecuniary damages in this case I am also cognizant of the Supreme Court of Canada’s summary of the purpose of non-pecuniary damages as set out in Lindal v. Lindal, [1981] 2 S.C.R. 629 at p. 637:

 

Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual’s loss is the key and the “need for solace will not necessarily correlate with the seriousness of the injury” (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada(1981), at p. 373). In dealing with an award of this nature it will be impossible to develop a “tariff”. An award will vary in each case “to meet the specific circumstances of the individual case” (Thornton at p. 284 of S.C.R.).

 

[28] Such awards will vary in each case to meet specific circumstances. A specific circumstance here is the plaintiff’s overall health condition. That said, I accept that her injuries have significantly impacted her enjoyment of life, including her work, family and social life…

 

[30] Perhaps not surprisingly, I find that a proper assessment of the plaintiff’s non-pecuniary loss falls between those referenced by the plaintiff and defendant.

 

[36] In Fata, the injuries were found to be such that they would not have prevented a return to full-time employment, although with discomfort. Some of the sequelae were resolved at the time of trial, although there was some lingering shoulder pain that would likely not resolve. The Court awarded $45,000 non-pecuniary damages. The factual circumstances are not in all respects similar to the case at bar, but in my view the award in Fata most appropriately approximates what is appropriate here. I note in that case the Court found that the plaintiff could have returned to work but chose not to. In this case the plaintiff did return to her former employment, which her specialist physician opined she could, but she ultimately chose to discontinue that employment and is considering retraining.

In Engqvist v Doyle, the Court disagreed with how the Plaintiff suggested that pain and suffering amounts should be determined. The Court ruled that there cannot be a separate, distinct amount awarded for each particular injury.

 

[28] The plaintiff’s approach to assessing non-pecuniary damages is flawed. Discrete physical injuries are not items on a grocery list, and the court is not a cashier totting up the damage. The plaintiff’s dental injuries cannot be given a separate line-item in the assessment of her non-pecuniary loss. The assessment is a global exercise and must be based upon the effect that the injuries as a whole have and will have upon the plaintiff’s life.

 

[29] I find that the plaintiff’s injuries have had and will in the future have a significant impact upon the plaintiff’s ability to enjoy life. The injuries have curtailed the plaintiff’s otherwise active lifestyle. She does not ride her bicycle as much as she used to, she does not play golf with the same frequency or engagement as before the accidents, and her overall participation in life has been diminished. She has a constant ache in the soft tissues over her right shoulder blade. It takes very little use of the plaintiff’s right arm to cause that ache to escalate to a serious pain. The plaintiff will likely undergo at least one series of medial nerve block injections. These will be painful procedures. They are diagnostic in nature – that is to say: the discomfort that she will experience during these injections will be only part of the price in pain that she will have to pay. If the nerve blocks are effective, then the plaintiff will likely undergo one or more rhizotomies. These will be wildly painful. If successful, the rhizotomies will afford the plaintiff with considerable but not complete relief from her symptoms. The relief will likely not be permanent and will last anywhere from six months to five years. The plaintiff may choose to undergo as many as two more rhizotomies. She might, on the other hand, decide to simply live with the pain. In either case, the plaintiff’s enjoyment of life will be reduced by symptoms attributable to the accidents.

 

[30]  I have reviewed the authorities upon which the parties rely in support of their respective positions. No one case is entirely on point, nor is any one case completely irrelevant. In my view, the proper amount of non-pecuniary damages for the first collision is $65,000 and for the second collision it is $5,000.

 

In Anderson v Cejka, the Court discussed why it is that people with similar injuries can be awarded different amounts for pain and suffering.

 

[84]         In my opinion, previously-decided cases, even where there are some similarities with the case at bar, can only assist in establishing a general range of damages which may apply to a particular case. This is because no two plaintiffs will ever be the same in age, previous state of strength and health, occupation and other activities. Moreover, the injuries (or combination of injuries) sustained by one plaintiff will never be the same as those incurred by another, in kind or severity. Additionally, the reaction of any two persons to the pain of a similar injury or to particular treatments will rarely if ever be the same. Other differentiating features may be the apparent length of the recovery period and, if the plaintiff has not recovered, the kind and extent of residual effects remaining from the injury at the time of trial, and whether any of the effects will be permanent.

 

[85]         I have reviewed the cases cited by counsel, in light of the facts which I have found. Due to significant differences, I see no useful purpose in discussing them. There is no legal formula which can be used to measure the amount of pain and suffering and loss of enjoyment of life that a plaintiff has experienced as a result of an injury caused by the defendant. In my opinion, the range of damages for non-pecuniary loss in this case is the range suggested by Mr. Dreyer, namely, $15,000 to $25,000.

 

[86]   The pain suffered by the plaintiff was never serious. He himself consistently described its severity as being one or two on a scale of ten. Within a few months after the accident, the symptoms became intermittent. Eventually, they became few and far between. The plaintiff was never disabled by the pain, to any significant extent. I must be careful not to penalize the plaintiff for being stoical in the face of pain. But I do not find that this is the case here. I award $20,000 for this head of damages.

In Fata v Heinonen, the Court had occasion to discuss the “Golden Years Doctrine”.

 

[84]           There are several factors to take into account in considering Mr. Fata’s pain and suffering and loss of enjoyment of life.

 

[85]           I have already made the point that the evidence clearly establishes that Mr. Fata lost some of the enjoyment of his job, due to the ongoing injury in his shoulder. 

 

[86]           As well, Mr. Fata testified that he was unable to do all of the activities in retirement that he had planned to do, due to his shoulder injury.  The evidence was clear that he was a highly competent handyman and I accept that he would have undertaken several projects around the home in retirement had he not felt the restriction he now feels in his left arm.  As well, I accept that he was an avid gardener and that his enjoyment of gardening has been restricted because of the injury in his left shoulder and arm.

 

[87]           In addition, Mr. Fata hoped to pursue more fly fishing in his retirement; the injury in his left shoulder and arm has diminished his enjoyment of this activity.

 

[88]                The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality.  When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life.  Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age.  The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.).

 

[89]               In short, it is Mr. Fata’s loss of enjoyment of life in recreation, home chores, and work that should be compensated for in an award for non-pecuniary damages…

 

In Collyer v Boon, the Court discussed the kinds of factors that come into play when awarded damages for “non-pecuniary” loss.

 

[104]            The purpose of non-pecuniary damage awards is to compensate the plaintiff for “pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023, B.C.J. No. 1535 at para. 134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Kuskis v. Tin, 2008 BCSC 862, B.C.J. No. 1248.  While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as a guide to assist the court in arriving at an award that is just and fair to both parties: Kuskis at para. 136.

 

[105]            There are a number of factors that courts must take into account when assessing this type of claim.  The majority judgment in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19, outlines a number of factors to consider, at para. 46:

 

The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages includes:

 

(a)      age of the plaintiff;

(b)      nature of the injury;

(c)      severity and duration of pain;

(d)      disability;

(e)      emotional suffering; and

(f)      loss or impairment of life;

 

I would add the following factors, although they may arguably be subsumed in the above list:

 

(g)      impairment of family, marital and social relationships;

(h)      impairment of physical and mental abilities;

(i)       loss of lifestyle; and

(j)       the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.)).

 

[108]      The plaintiff‘s enjoyment of life has been substantially impacted by his injuries.  His intimate relationship with his girlfriend is affected by his back pain, he has become dependent on his narcotic painkillers with attendant side effects, he cannot snowboard with his friends, use of his computer causes him pain in his neck and back, his stamina is reduced and he is occasionally irritable due to his pain.

 

[109]      It is now 3 and one-half years since the Accident occurred on March 30, 2005 and the plaintiff still suffers from persistent pain in his neck, upper and mid-back.  While there are mixed views among the doctors, the prognosis for him appears guarded since he may only be able to expect to develop better strategies to cope with his pain, but the pain itself will not likely disappear completely.  This is a somewhat distressing prospect, although it appears he may hope for some reduction in his symptoms with dedicated attention to his fitness