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The relationship between age and compensation

Are older crash victims discriminated against when it comes to fair financial compensation for their injuries?  They do have fewer years to endure the impacts of an injury.

In the July 30, 2015, decision of Wong v. Towns, 2015 BCSC 1333, Madam Justice Bruce was faced with assessing “pain and suffering” losses for a woman, 80 years old at the time of a crash, who had suffered a mild traumatic brain injury that was having a profound impact on her life.  She found that there should not be any reduction in compensation as a result of age, noting that “the quality of life becomes more important when there are fewer years left to enjoy”, and awarded $180,000.00 in compensation:

[94]         Many factors must be considered in assessing non-pecuniary damages. Compensation is designed to ameliorate the suffering and harm caused by the injuries and to provide some solace. While the nature of the injury must be taken into account, it is the impact of the injury on a particular plaintiff that is determinative. In this case a mild traumatic brain injury is clearly not as serious as a major brain injury that renders a person unable to walk or speak; however, the impact of the mild traumatic brain injury on Mrs. Wong has been devastating because it triggered a rapid onset of dementia symptoms that reduced her cognitive function dramatically. The impact of this rapid decline in cognitive function is evident when the court compares Mrs. Wong’s lifestyle and behaviour before the accident with her life now.

 [95]         There is no doubt that had Mrs. Wong been a younger person at the time of the accident, the loss of cognitive function would have been more devastating. However, I agree with the comments of Justice Fisher in Etson; that is, Mrs. Wong’s loss of cognitive function could be viewed as more serious due to her age because the quality of life becomes more important when there are fewer years left to enjoy. In the end, however, these two aspects of the “Golden Years” doctrine appear to be evenly balanced in the circumstances of this case.

 [96]         I have considered the authorities cited by both parties. While they are helpful in establishing a range of damages, each case must be decided on its own facts in light of the factors identified by the authorities such as Stapley v. Hejslet, 2006 BCCA 34 at para. 46. In this case, what could be characterized as a relatively minor brain injury has led to a severe loss of cognitive function and a dramatic personality change. The loss of enjoyment of life experienced by Mrs. Wong is profound. I find a fair and reasonable amount of damages for pain and suffering is $180,000 and I award this amount to Mrs. Wong.

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