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Elderly Injury Claimant Awarded $50,000 for Pain and Suffering

Value of pain and suffering for psychological injury

Age is a factor for compensation for older and retired adults after a motor vehicle injury and is considered in today’s personal injury case: Bardua v. Han, 2016 BCSC 861.  As it relates to compensation for pain and suffering for retired individuals  Judge Griffin  famously stated:

[88] The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality. When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life. Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age. The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.) (in Fata v. Heinonen, 2010 BCSC 385)

Judge Arnold-Bailey in Dent v. Young, 2013 BCSC 160 also reviewed the factors for pain and suffering compensation to be considered for the elderly:

[110]  When an older person is injured and suffers these impairments to their mobility, the negative change in their physical abilities must be considered with all due seriousness. As stated by Lord Justice Sachs in Frank v. Cox (1967), 111 Sol. Jo. 670 (C.A.), which was adopted by Fraser J. in Moody v. Windsor (1992), 64 B.C.L.R. (2d) 83 at 93 (S.C.):

I take the view myself that when one has a person in advancing years, in some respects an impairment of movement may perhaps be more serious than it is with a younger person…

[111] While assessing non-pecuniary damages is very case specific, I find the facts here are most akin to those cases in which older plaintiffs have suffered significant negative changes to their lifestyle and independence due to their injuries. Of the cases referred to I find the cases of Pingitore v. Luk and Larlee v. Shier to be most similar to the case at bar. In both those cases, older plaintiffs suffered significant injuries that impaired their post-accident lives to a substantial degree, depriving them of their prior levels of physical activity, productivity and enjoyment. I look to those cases in assessing a fair and reasonable amount in non-pecuniary damages in this case.

Some cases rely on the “Golden Years” doctrine, to suggest that an injury may have a greater impact on an older person, whose activities are already constrained by age, than on a younger person who may be active in other respects. Other cases suggest that the competing considerations of the claimant’s age and the application of the “Golden Years” doctrine may balance each other out (see: Johal v. Radek, 2016 BCSC 454).  In this case the judge followed Johal.

The effects of the injuries suffered did not permanently alter the degree of future pain and suffering she would otherwise have experienced. The judge considered the injuries themselves and their probable contribution to and aggravation of the plaintiff’s pre-existing condition and fixed the sum of $50,000 for general damages ( pain and suffering). In doing so, the judge adopted the approach taken in Johal , and considered that loss of housekeeping capacity ought to be included in the award for general damages. He also considered that the claimant had reached an age where “any diminution in enjoyment of life can be more acutely experienced”…

Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

Tags: golden years doctrine, icbc case examples, Legal Causation, Pain and Suffering

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