Court Discusses Factors Considered In Making Award For Pain And Suffering

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

Leave a Reply

Your email address will not be published. Required fields are marked *