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Valuing Pain and Suffering: “There is no Medium of Exchange for Happiness”

How will a court put a dollar amount on what I’ve gone through?  I didn’t have much to lose, but I’ve lost it all – how can that be replaced with money?

In the recent case Wright v Misty (2017 BCSC 239), the plaintiff had a number of significant health issues prior to the subject car crash, which he alleged caused some further injuries.  At issue in the lawsuit was to what extent his present condition was the result of the crash rather that his pre-existing conditions.

Indeed, Mr. Wright was in worse health before the crash than most of us can imagine – he suffered from urinary incontinence, back and arm pain, left ulnar nerve neuropathy, hepatitis C, tongue cancer, disk degeneration in his spinal column, osteoarthritis, and depression.  His prognosis prior to the crash had been poor – that is, he hadn’t been in stable or uphill condition in the months preceding the car crash.

The court found that the crash had caused Mr. Wright to suffer from vertigo (which had in turn caused a fall and a testicle injury), had aggravated his depression, and had caused him soft tissue injuries (which had resolved within 3-6 months of the crash).   Justice Choi awarded Mr. Wright $110,000.00 in general damages, noting that the vertigo had robbed him of much of his enjoyment in life:

[53]         A non-pecuniary award is given to compensate a plaintiff for pain and suffering a defendant has caused them. Mr. Justice Dickson set out the oft-quoted approach to 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.

[54]         While each case depends on its own facts, the award should be fair and measured against other similar cases. In Stapley v. Hesjlet, 2006 BCCA 34 at paras. 45-46, the Court of Appeal set out a non-exhaustive list of factors to be considered in making this award. These include the age of the plaintiff; the nature of the injury; severity and duration of the pain; disability; impairment of life; impairment of family, marital and social relationships; impairment of physical and mental abilities; and loss of lifestyle. The plaintiff’s stoicism should not penalize the plaintiff.

[55]         Mr. Wright was 56 at the time of the accident and was 65 at the time of trial.

[56]         Mr. Wright suffered a number of injuries in the accident. He had soft tissue injuries that resolved within six months of the accident. He developed vertigo which has lasted for ten years and is likely a permanent condition. In addition, he has ongoing testicular pain from a fall related to the vertigo. His impairment also caused exacerbation of his pre-existing depression.

[57]         Mr. Wright noted that his vertigo has robbed him of much of his enjoyment of life, especially by limiting how much time he can spend with his grandson, and how they can play together.

[…]

[61]         Non-pecuniary awards will always turn on a complex factual matrix. I find, considering all of the circumstances, that $110,000 is fair and just compensation for Mr. Wright’s loss.

 

 

 

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