There are two types of losses, or damages, that can be claimed following a car accident whiplash injury in which the claimant is not at fault. First, Pecuniary damages for income loss and calculable out of pocket expenses. Second, Non-pecuniary damages to compensation for pain, suffering and loss of amenities and loss of enjoyment of life. ICBC is required to pay for both of these loses if the Insurance Corporation of British Columbia is the insurer for the at fault driver.
2017 will likely be a pretty flat year for any dramatic changes in whiplash compensation, short of proposed legislated change, for which there is currently none of note. This area is well developed and the legal principles are unlikely to be altered with the exception of perhaps compensation for the psychological component of whiplash.
Personal injury lawyers expect some comment from the Supreme Court of Canada in Saadati v. Moorhead this year which could expand or retract injury compensation of emotional injury where there is little or no medical opinion. This is unlikely to change the analysis for the typical soft tissue injury case.
Whiplash, formally referred to as Whiplash Associated Disorder ( WAD) or Soft Tissue Injury, is a recognized medical condition which can result in permanent and disabling symptoms of pain, reduced range of motion and headache disorder. British Columbia Courts have long recognized that whiplash can be permanent but the maximum payout for whiplash is less than $365,000 for pain and suffering. However, to break a myth, there is no $6,000 limit on whiplash claims.
Loss of Wages- the Claim for Pecuniary Loss
ICBC has special status in British Columbia when it comes to compensating for past wage loss. ICBC is only required to pay net income or past wage loss.
The factors to consider for future loss of income resulting from a whiplash injury include:
1. whether the claimant has been rendered less capable overall from earning income from all types of employment;
2. whether the claimant is less marketable or attractive as an employee to potential employers;
3. whether the claimant has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and
4. whether the claimant is less valuable to himself as a person capable of earning income in a competitive labour market.
Pain and Suffering Compensation- Non-pecuniary Losses
In McCagherty v. Camps,2016 BCSC 1974 the court $70,000 awarded for soft tissue injury pain and suffering, as a case example. In making that decision, the court took into account the substantial disruption to her life along with the physical discomfort and psychological effects of the accident. The matter of the diminished housekeeping capacity is a factor that will been considered is arriving at an amount for injury compensation.
Soft tissue injuries in the accident, resulting in neck, shoulder, and back pain and headache (Picton v. Fredericks,2016 BCSC 1470). The court found that a fit and appropriate award of damages for pain and suffering was $85,000 for Whiplash Associated Disorder.
The observation of N. Smith J. in Edmondson v. Payer, 2011 BCSC 118, at paras. 94–95, that prior cases are useful only as a guide in determining the proper compensation under this head, is relevant to the exercise at hand. Each case must be decided on its own facts.
In Picton the judge also concluded that from time to time the claimant, after the accident, the claimant was able to engage in activities such as golfing and snowboarding. She also continued to pursue her fitness regime, although in a somewhat diminished way. Awarding her $85,000, the effect of the whiplash injury reduced her enjoyment of life but she was still able to pursue a fitness regime.
If you start your personal injury claim in Provincial Court (Small Claims Court in BC), your claim will be limited to $35,000, despite your soft tissue injury potentially being worth more. Whiplash injuries worth $30,000, $35,000 or $40,0000 will be limited to $35,000 in Small Claims Court.
In the Supreme Court, however, there is no specific monetary limit on the awards available for soft tissues injuries or whiplash. If you pick the wrong forum for your lawsuit or agree to a low settlement amount with ICBC, compensation for your injury will be limited.
Find out more about valuing and settling your case with ICBC after a whiplash injury:
Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B