HERGOTT: When a minor injury isn’t so minor

Paul Hergott is a personal injury lawyer based in West Kelowna

What is a minor injury? Crash victims injured on or after April 1, 2019, need to know because pain and suffering compensation for a “minor” injury is capped at $5,500.00.

For me, the words “pain and suffering” conjure up a heinous torture scene.

It’s just a label. Other labels for the same aspect of loss are “non-pecuniary losses” and “general damages”.

Those labels refer to the aspect of your loss that cannot be measured in dollars and cents.

If someone causes you injury, they must make you whole. They’re obligation is passed on to their insurance company, typically ICBC.

You are not made whole solely by putting back into your pocket the dollars and cents you have lost in income and expense.

Something more is required to compensate you for the experience of being injured.

That experience includes such things as pain, headaches, taking time out of your day to attend physiotherapy and other care and coming home after work with flared up symptoms and no energy to enjoy your family.

If you are lucky, with temporary injuries, that experience will end. If not so lucky, that experience will last the rest of your life.

How do you put a dollar figure on that, when a life without pain is priceless?

We look at long established legal precedents. For decades, judges have very consistently assessed fair compensation for injury victims.

A recent example where the court explained the process is the case of Sahota v. Slupskyy, 2019 BCSC 2215.

The judge noted at paragraph 112 that because these losses are intangible and not easily evaluated, compensation “should be designed to provide reasonable ‘solace’ for a plaintiff’s loss, where ‘solace’ is viewed in the sense of funding things that might make life more bearable or enjoyable.”

And at paragraph 114 noted that a list of factors has been established to help judges evaluate this loss: “A non-exhaustive list of factors taken into account in assessing any award for non-pecuniary general damages include the plaintiff’s age, the nature of the injury, the severity and duration of the pain, disability, emotional suffering, impairment of life, family, marital and social relationships, impairment of physical and mental abilities, and loss of lifestyle.”

An example of a modest amount of compensation is Hans v. Volvo Trucks North America Inc., 2016 BCSC 1155, where $15,000.00 was assessed an appropriate compensation for Mrs. Hans who was described as having shoulder and neck pain, the effects of a minor concussion for three or four months, and driving anxiety. All of her symptoms were fully resolved within approximately one year.

A different level of compensation is required for permanent symptoms, such as in Gartner v. Baumeister, 2019 BCSC 1291. The crash victim was left with chronic headaches, but his activities had not been significantly impacted on a long term basis. His compensation for pain and suffering was assessed at $50,000.00.

The more significant the ongoing symptoms, and the more impact those symptoms have on your life, the higher the compensation assessment.

When our government imposed a cap of $5,500.00 for “minor injuries”, they did not base it on the factors that our courts consider. The definition of “minor injury” does not consider your level of pain, stiffness and other symptoms, whether or not they might last a lifetime, nor how they impact on recreational activities or relationships.

The starting point is a very broad list of injuries that captures all those occurring in typical car crashes, including PTSD, concussion, whiplash, pain syndromes and TMJ.

The only way for those injuries not to be considered “minor”, is if they disable you from performing the essential tasks of your employment, education or activities of daily living for an extended period of time.

For concussions and psychological or psychiatric injuries, your disability must last longer than 16 weeks.

And for the other injuries, your disability must last more than 12 months.

A “minor injury” cap wouldn’t be offensive if it applied to truly minor injuries.

But how can injuries that completely disable you from working for any period of time, or that leave you with anything of permanent symptoms, be considered “minor”?

An animal that looks, waddles and quacks like a duck cannot be made into a moose by defining it as one.

The government has pulled the wool over our eyes by announcing a “minor injury cap” that includes moderate to severe injuries.

Does this concern you? Help expose the truth and contact your MLA.

Missed last week’s column?

HERGOTT: Driving while intoxicated

About Paul Hergott, Personal Injury Lawyer:

Paul began practicing law in 1995 in a general litigation practice. Of the various areas of litigation, he became most drawn to and passionate about pursuing fair compensation for personal injury victims, which has gradually became his exclusive area of practice. Paul’s practice is restricted to acting only for the injured victim, never for ICBC nor for other insurance companies.

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