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Vancouver ICBC Injury Settlement Lawyers
Spencer MacLean of our Vancouver ICBC Injury Settlement Lawyers and Mandarin and Cantonese personal injury lawyer team, writes today’s blog on the test a court uses to set ICBC injury damage awards for your pain and suffering and loss of enjoyment of life.
Our Vancouver ICBC Injury Settlement Lawyers like the explanation of the test presented so eloquently in this week’s case of Khudabux v. McClary :
 The purpose of non-pecuniary damage awards in personal injury cases was summarized recently by Mr. Justice Jenkins in Bove v. Wilson, 2016 BCSC 1620:
 Non-pecuniary damages are awarded to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. The compensation awarded should be fair to all parties, and fairness is measured against awards made in comparable cases (Trites v. Penner, 2010 BCSC 882 at paras. 188-189; Andrews v. Grand & Toy Alta. Ltd.,  2 S.C.R. 229 at paras. 243-44). Such cases, though helpful, serve only as a rough guide. Each case depends on its own unique facts (Trites). … The factors emphasized by Madam Justice Kirkpatrick in Stapley v. Hejslet, 2006 BCCA 34, have been referred to and followed by judges of this court on many occasions and are most instructive in assessing non-pecuniary damages…
 In Stapley, Kirkpatrick J.A. stated:  Before embarking on that task, I think it is instructive to reiterate the underlying purpose of non-pecuniary damages. Much, of course, has been said about this topic. However, given the not-infrequent inclination by lawyers and judges to compare only injuries, the following passage from Lindal v. Lindal, [ 2 SCR 629] at 637 is a helpful reminder:
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.).
Vancouver ICBC Injury Settlement Lawyers Explain Factors
The learned trial judge went on to set out the factors that guide determination of how much money a victim gets for their pain and suffering:
 The inexhaustive list of common factors cited in 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;
(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,  B.C.J. No. 163 (QL), 2005 BCCA 54).[Emphasis in original.]
Vancouver ICBC Injury Settlement Lawyers Spencer MacLean Explains The Damage Award Tries To Restore Plaintiff To Pre-Accident Condition
 Personal injury damages are compensatory, or restitutionary; as with all tort damages, they are intended to restore an injured plaintiff, as much as can be done through a monetary award, to the state they would have been in had the injury never occurred. The assessment of damages entails a comparison of the plaintiff’s current state with what the Supreme Court of Canada, in Athey v. Leonati,  3 S.C.R. 458, termed the plaintiff’s “original position”. To ensure that a defendant justly compensates a plaintiff, consideration of this “original position” entails not only an examination of the plaintiff’s condition at the time the subject injury is sustained, but also consideration of what condition the plaintiff would have gone on to attain but for the defendant’s conduct. As stated by the Supreme Court of Canada in Blackwater v. Plint, 2005 SCC 58, a judgment delivered by Chief Justice McLachlin:
78 It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of the plaintiff’s damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway: Athey. …
See also Burdett v. Eidse, 2011 BCCA 191, at paras. 59-61; and, Hussack v. Chilliwack School District No. 33, 2011 BCCA 258, at paras. 97-104.
 With respect to the potential for a pre-existing condition that forms part of the “original position” becoming manifest, even had the tort not occurred, the rule is stated in the reasons of Mr. Justice Smith, concurred in by the entire five-justice panel, in T.W.N.A. v Canada (Ministry of Indian Affairs), 2003 BCCA 670:
 Finally, it must be remembered that the onus is on a plaintiff to prove that the defendant’s wrongdoing has materially contributed to the injury. A defendant is only liable for injury or loss that the plaintiff would not have suffered but for the defendant’s negligence. The contribution must be proven to have been more than negligible, or more than de minimus.
- … Whether manifest or not, a weakness inherent in a plaintiff that might realistically cause or contribute to the loss claimed regardless of the tort is relevant to the assessment of damages. It is a contingency that should be accounted for in the award. Moreover, such a contingency does not have to be proven to a certainty. Rather, it should be given weight according to its relative likelihood.