Are you within or outside of the $5,500 limits imposed for B.C. pain & suffering awards for injuries after March 31, 2019?

These are the essential extracts, with comments, of the changes to the B.C. law governing ICBC injury claims regarding caps placed on most, but not all, pain & suffering awards arising from motor vehicle accidents.


Limit on non-pecuniary loss for [so-called] minor injuries

the amount recoverable by a claimant as damages for non-pecuniary loss [meaning pain & suffering] arising from one or more [so-called] minor injuries suffered by the claimant in a single accident must be calculated or determined in accordance with the regulations [which limit will be $5,500 for the fiscal year starting April 1, 2019].

[Section 103(1), Insurance (Vehicle) Act: Part 7 — Minor Injuries & also Minor Injuries Regulation to the Act]

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[So-called] ”minor injury” means a physical or mental injury, whether or not chronic, that:

(a)…does not result in a serious impairment or a permanent serious disfigurement of the claimant, and

(b) is one of the following:

– an abrasion, a contusion, a laceration, a sprain or a strain;

– a pain syndrome;

– a psychological or psychiatric condition;

– a prescribed injury or an injury in a prescribed type or class of injury [which includes all but the the most severe whiplash injuries];

[*See at the bottom the definitions given by the regulations to these terms.]

[Section 101 (1), Insurance (Vehicle) Act: Part 7 — Minor Injuries]

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The serious impairment exceptions to the minor injury caps re pain & suffering:

 [A claimant will have to wait for a year after his or her injury to see if it falls within one of the three exceptions.]


If the injury impacts your life for more than 12 months — for example, you’re still not able to go to work or school, have to modify your work hours or duties, you’re unable to care for yourself — it will no longer be subject to the limit on pain and suffering.

In the case of concussions or mental health conditions, there will be no limit on pain and suffering if there is a significant impact beyond four months.” 

[ICBC’s website]

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“serious impairment”,

in relation to a claimant, means a physical or mental impairment that:

(a) is not resolved within 12 months…after the date of an accident, and

(b) meets prescribed criteria.

[Section 101 (1), Insurance (Vehicle) Act: Part 7 — Minor Injuries]



3   For the purposes…of “serious impairment”…the claimant’s physical or mental impairment must meet the following prescribed criteria:

the impairment results in a substantial inability of the claimant to perform:

-the essential tasks of the claimant’s: 

– regular employment, occupation or profession…

– training or education in a program or course…

or

– the claimant’s activities of daily living;

AND

the impairment is not expected to improve substantially.

[Minor Injuries Regulation to the Act]

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“activities of daily living”

means the following activities: preparing own meals; managing personal finances; shopping for personal needs; using public or personal transportation; performing housework to maintain a place of residence in acceptable sanitary condition; performing personal hygiene and self-care; managing personal medication;
[Minor Injuries Regulation to Insurance (Vehicle) Act]


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*DEFINITIONS OF VARIOUS “MINOR INJURIES” THAT ARE SUBJECT TO THE CAP, AT LEAST FOR THE FIRST YEAR AFTER AN INJURY:


“pain syndrome” 

means a syndrome, disorder or other clinical condition associated with pain, including pain that is not resolved within 3 months;


“sprain” 

means an injury to one or more ligaments unless all the fibres of at least one of the injured ligaments are torn;


“strain” 

means an injury to one or more muscles unless all the fibres of at least one of the injured muscles are torn.Paragraph

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2  The following injuries are prescribed injuries…: [that are subject to the cap for at least the first year]:

– a concussion that does not result in an incapacity;

– a TMJ disorder;

– a WAD injury [meaning a whiplash associated disorder].


“WAD injury” means

a whiplash associated disorder other than one that exhibits one or both of the following:

(a) decreased or absent deep tendon reflexes, deep tendon weakness or sensory deficits, or other demonstrable and clinically relevant neurological symptoms;
(b) a fracture to or dislocation of the spine.