By Ian Aikenhead, Q.C.
When a person is injured they will be entitled to different kinds of damages from the court. The first is general damages for pain and suffering, or what the courts call “non-pecuniary damages” because they are not damages directly related to a financial loss, but for pain and suffering.
The purpose of the non-pecuniary award is to allow the substitution of other sources of satisfaction for those that have been lost. Money thus awarded is intended to be used by the plaintiff to make his or her life more bearable and to provide reasonable solace for his or her intangible losses (Andrews v. Grand & Toy Alta. Ltd., [1978] 2 S.C.R. 229; Thornton v. School District No. 57, [1978] 2 S.C.R. 267; Arnold v. Teno, [1978] 2 S.C.R. 287 (the “trilogy”)).
The object of non-pecuniary damages is to compensate a plaintiff’s pain, suffering, and loss of enjoyment of life. The fairness and reasonableness of the award amount is measured by the impact of the particular injuries on the particular plaintiff. While fairness is assessed by reference to awards made in similar cases, it is “impossible to develop a tariff”; each case is decided on its own facts, and the process is one of assessment and not of mathematical precision.
A non-exhaustive list of factors includes the plaintiff’s age, the nature of the injury, the severity and duration of the pain, disability, emotional suffering, loss or impairment of life, family, marital and social relationships, impairment of physical and mental abilities, and loss of lifestyle (M. (B.M.) v. V. (M.L.), 2009 BCSC 1174).
As a result of the trilogy, the Supreme Court of Canada limited damages for pain and suffering and loss of enjoyment of life to a maximum of $100,000. Subsequent cases established that this “rough upper limit” of $100,000 should be adjusted for the effects of inflation (Lindal v. Lindal, [1981] 2 S.C.R. 629). As of December 2011, the upper limit was approximately $345,000.
The functional approach to non-pecuniary damages necessarily involves comparison of awards made in previous cases involving similar injuries with adjustments made to fit the specific factors of a particular plaintiff (Penso v. Solowan (1982), 35 B.C.L.R. 250 (C.A.)). Thus, the severity of the injury that the plaintiff sustains is not solely determinative of the amount of the award. The effect the injury has on the particular plaintiff’s life must be taken into account.
There is no legal principle that an award for pain and suffering should be discounted to reflect a claimant’s age or life expectancy, although these are relevant facts to be considered in determining an appropriate award (Ha v. Fritzke (1999), 69 B.C.L.R. (3d) 326 (C.A.)). See also Irvine v. Cara Operations Ltd., 2002 BCSC 1581, in which the trial judge commented that decisions involving comparable injuries to individuals much younger than the plaintiff were not of any particular assistance.
