How Should a Jury Value a Pain and Suffering Award
Pain and suffering awards require careful consideration. Factors such as the extent of injuries, loss of enjoyment, pre-existing conditions, and long-term effects of medications should be evaluated. Awareness of statutory deductibles is crucial for informed decision-making. If you have been involved in a personal injury case and you want to understand the complex process of valuing pain and suffering awards this blog is for you.
Consideration should be given to the following:
- Pain and suffering (general damage) awards in Canada are the lowest in the G7. Germany, France, Scotland, Ireland, Australia all have capped injury awards at $1 million, not $420,000.
- Injury awards should be indexed differently than the underlying statutory deductible. An analogous wrongful death case, ONCA Moore (2021) is instructive.
- In Moore at para. 26, a 1992 starting point was used by the presiding judge for the seminal wrongful death decision, ONCA To v Toronto School Board of Education (2001) to arrive at a 50% increase.
- We are informed by the Court of Appeal that there is no ‘judge made cap’ for wrongful death awards (para. 23).
- If linked to the arbitrary statutory deductible, the total current CPI ‘all products’ increase for personal injury awards from 2010 is 21%.
- No judicial consideration has been given to just ‘gas and bread’ increases, one way or the other.
Consideration of any pain and suffering award must include:
- The totality of the Plaintiff’s injuries: each individual physical, cognitive and psychological injury stacked one upon the other must be individually then collectively valued: ONCA Walker v Ritchie (2006); ONCA Bifolchi v Sherar (1996), FCA Bungay (2018) and Villani (2009), by analogy.
- A further and additional valuation of an amount for the loss of the Plaintiff’s enjoyment of life, loss of leisure activities, and loss of hobbies: Andrews v Grand & Toy Alberta Ltd., 2 SCR 229, at p. 233.
- The application of the dicta from SCC decision Athey v Leonati (1996) providing that only “a” tortious cause is required to arrive at the full valuation of the Plaintiff’s injuries despite non-tortious causes;
- A thoughtful consideration of the pre-existing conditions that make a Plaintiff vulnerable to lasting, permanent, serious injuries. Pre-existing conditions such as diabetes, osteoarthritis, HBP, circulation issues as well as prior injuries that ensure that 15% of injured motorists are unable to recover;
- The acceptance that it is not about the injuries that the Plaintiff already has; it is about what has been taken away;
- An incorporation of the long-term side effects of prescribed medications into the valuation of these injuries as the Plaintiff must take these medications to cope with the pain, and those losses arising from the losses of functionality, limitation, and restriction they now have. For example, resulting liver and kidney damage ought to be added to the valuation of these injuries if brought about as a side effect by these medications.
- The collective measure of the Plaintiff’s injuries taken in a ‘real world’ context and its impact upon their lives while considering their full nature and extent as it relates to this Plaintiff’s employability, functionability, limitations, restrictions, unpredictability, and unreliability: SCC United Grain Growers v Wallace (2010) at para. 83; Villani (2009) FCA; Bungay (2010) FCA. If a Plaintiff has been awarded and is receiving Canada Pension Plan Benefits, it must be accepted that the injuries are ‘severe and prolonged’ and that the Plaintiff is ‘stopped from regular employment’ when calculating a pain and suffering award. If found to be severe, the injury award should exceed the upper statutory deductible at $138,343.86 so that no statutory deductible can reduce the award.
The jury ought to be made aware of the precise amount of both statutory deductibles. The amount of the lower statutory deductible of $41,503.50 is not paid to the Plaintiff if the injuries are assessed at an amount below $138,343.86. The Insurance Act (s. 267.5) only requires that juries should arrive at their verdict “without regard to” these deductibles. It does not say these jurors should not know about them. Too much mischief could occur without this knowledge. This must be addressed as a preliminary Motion at Trial. The lower statutory deductible is $41,503.50.
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