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$220,000 Non-Pecuniary Damages Awarded for Leg Amputation and Chronic Pain

What is a reasonable assessment of damages for my pain and suffering caused by my injuries? How does the court decide what is fair and just?

In order to predict what might be a realistic range of damages awarded by the court for pain and suffering (a.k.a. non-pecuniary or general damages), one must look to previous judgments for guidance. Typically, people head into litigation overestimating what their injuries are worth. A recent judgment released by the BC Supreme Court provides a little perspective on the issue. In the case of Bye v Nelson, 2017 BCSC 1718, Justice Choi considered devastating injuries (an amputated leg and severe chronic pain) resulting from a head-on collision between a dirt bike, operated by the plaintiff, and an ATV, operated by the defendant, on a dirt road. For a pithy summary of the collision and the doctrine called “agony of collision”, take a look at my fellow associate, Jillian Dean’s, post. Perhaps surprisingly, the plaintiff was only awarded $220,000 for pain and suffering in light of the grave consequences which accompany his injuries.

The plaintiff, Mr. Bye, was just 31 years old at the time of the crash. He was an active man who enjoyed various recreational activities. He was employed by Teck Metals as a carpenter – a prosperous job he loved. As a result of the collision Mr. Bye was left with multiple injuries including a fracture to his neck and multiple fractures to his leg. He was immediately rushed to the hospital and his injuries required a through-knee amputation of much of his left leg.

Mr. Bye’s injuries have devastatingly changed his life forever. As a 35 year old, he suffers daily pain and fatigue as a result of the amputation. He is permanently disabled from the profession he loved and many of his recreational activities. Before the crash he enjoyed dirt biking, boating, hunting, fishing, hiking, and swimming. His injuries have put an end to, or severely limited, his enjoyment of these past-times. Additionally, the interactions of playing and caring for his one year old son are made more difficult by his injury.

To assess damages, Madam Justice Choi considered the following analogous case law:

[100]      Tailleur considered a 14-year-old who, through negligent medical care, required an above-knee amputation instead of one below the knee. The court assessed the non-pecuniary loss of an above-knee amputation, and subtracted that from the loss from a below-knee amputation, finding that $170,000 was appropriate compensation for an amputation like Mr. Bye’s. That would have a present value of $246,000. Similar to the facts in this case, the plaintiff was young (though significantly younger than Mr. Bye), had an active lifestyle, and was subjected to ongoing and painful treatment for her condition.

[101]      Savinkoff gives the low range for an injury similar to Mr. Bye’s. There, the plaintiff suffered an above-knee amputation after a car accident. The court considered the difficulty of finding prostheses for above-knee amputations, the plaintiff’s age (57 at the time of the accident), and a pre-existing, life-threatening heart condition, which limited the plaintiff’s activities, and life expectancy. The court awarded $125,000 in general damages, with a present value of $187,427.

In assessing non-pecuniary damages at $220,000 Madam Justice Choi provided the following reasons:

 [91]         Non-pecuniary awards are given to compensate a plaintiff for the pain and suffering caused by the defendant’s negligence. Mr. Justice Dickson set out the policy behind these awards in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 261:

… There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier deci­sions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution. …

[102]      Mr. Bye has been dealing with his injuries since he was 31. He will continue to face difficulties for the rest of his life. Considering all the evidence, the Stapley factors, and case law submitted by the parties, I conclude an award of $220,000 is fair and appropriate in all the circumstances.

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