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Pain & suffering

• How do the courts and ICBC decide how much to award an injured person for pain and suffering?
• The amount that a court awards an injured person for pain and suffering depends upon whether the case is being decided by a judge or by a jury. When ICBC is pushed to the wall and a trial date is fast approaching, the amount it decides to offer is based on several factors, including what it thinks is the likely range that a judge or jury will award the injured person if the case goes to trial.

  Judges try to maintain consistency amongst awards for a similar injury and consequences of the injury. In order to do this, they review a number of written decisions of other trial judges and the Court of Appeal. They are not bound by what other judges have awarded in similar cases, but those awards give them guidance as to the range. Some judges tend to make awards at the higher end of the range; others lean more towards the lower end of the range.

  If a jury is to decide how much to award an injured person, the law does not allow the judge or the lawyers to advise the jury what range judges have awarded for pain and suffering in such cases-except in 'catastrophic' cases. In these cases, the judge informs the jury that the law in Canada has placed a cap of about $333,000 on awards for pain and suffering. Most members of the public are shocked by how low this cap has been set for a person who is catastrophically injured. Fortunately, a jury may also award damages for future care and homemaking assistance and future loss of earning capacity. This can make the total damage award very large in spite of the cap on pain and suffering awards.

  The rationale for not giving jurors a range for damages is that juries' decisions help the judges keep in touch with the views of the public they serve. If judges were allowed to give a range to the jury, the educational value of the jury award would be lost. Of course, jurors know people who have had injury claims and some of them may have had injury claims themselves, so they may have some general background. Juries also apply a lot of common sense when determining what would be fair compensation for the pain and suffering of an injured person.

  Juries tend to be generous if they:

  • admire the injured person's struggle to overcome his or her injuries,
  • believe the injuries have had a profound impact on the injured person's life, and
  • are presented with evidence that allows them to see the damage to the injured person. Examples of this would be: MRI's, x-rays, medical diagrams, medical models, objective physical test results, scars and limps.

  During their arguments to the jurors, lawyers are not allowed to suggest a range or number that would be an appropriate award for the injured person's pain and suffering, but they are permitted to suggest numbers to the jury regarding appropriate awards for all other types of damages.