The Rear Ender: Mechanics of Whiplash Associated Disorder
The neck acts as a stationary marker during an average rear end impact collision. When hit from behind by a car the spine and torso load the seat and the torso begins to accelerate. Significantly high shear forces develop in the neck and brain, the spinal curves straighten and the spine is compressed. According to studies, high pressure gradients develop in the brain.
With the force of the rear end impact to the bumper the head snaps into full extension, which can be mitigated to some extent by a proper head restraint. The head rest acts as a fulcrum and the head begins a motion forward as the torso descends in the seat.
The full deceleration of the head, neck and torso, aggravated by the tightened seat belt, creates high tension and shear forces in the spine, brain stem, nerves and ligaments.
The prognosis for full recovery is generally good although about 10% of those suffering from whiplash soft tissue injuries become permanently disabled according to the research.
ICBC Settlement of Rear End Soft Tissue Injuries
Injuries resulting from rear ender accidents are treated no differently than other personal injuries. However, the Insurance Corporation of British Columbia, ICBC, is a government created auto insurance company which denied the existence of Whiplash Associated Disorder for many years in the past. ICBC continues to treat claimants suffering whiplash from rear end collision with contempt and has endorsed policies which completely deny compensation to victims of personal injury.
The Court however acknowledged years ago that whiplash injuries are real, relying on overwhelming medical evidence. Therefore, the negligent driver in a typical rear ender must pay for the losses suffered by the injured just as in any other personal injury case.
An award for pain and suffering must be provided if an injury and loss has been established. Currently awards for pain and suffering in BC are limited to a maximum of about $375,000 for the most catastrophic injuries. The least amount that can be awarded is zero if the judge is not convinced that the rearend car accident caused more than a trivial injury.
Average Awards for Rear End Collisions
Personal injury lawyers drawn to the attention of the judge or jury in each case a great many authorities on the question of awards for injuries bearing some resemblance to the case at hand. The classic expression in this Province is that of the Chief Justice in Cory v. Marsh,  77 B.C.L.R. (2d) 248 (B.C.C.A.). Our highest Court held that an award of damages will be a wholly erroneous estimate if it is,
“inordinately high, low or disproportionate [to the circumstances of the case]”, that is, if it “falls substantially beyond the upper or lower range for damage awards in the same class of case”
So the courts use compensation ranges to get the a sort of middling or medium value of the non-pecuniary loss. Here is a standard range chart and a few case examples for pain and suffering awards from rear end car accidents in BC:
Mohammed v. Rai, 2005 BCSC 1918 the spouses both received soft tissue injuries in the same low impact rear end collision. The husband suffered injuries to his neck and back. He had to avoid doing some household chores and had difficulty sleeping for the first four months after the collision. The wife, suffered from neck pain and headaches. She missed school activities with her children and cooked less at home. Their injuries were reported to have lasted four to eight months at most was no ongoing pain. The husband was awarded $3,000 for his non-pecuniary damages and the wife was awarded $5,000 for hers.
Goertz v. Kujala, 2006 BCSC 667 the claimant suffering neck, back and shoulder soft tissue injuries in a rear-end collision of moderate force. The claimant returned light duties in coffee bar about 2 weeks later, and carrying on with training leading to her employment as probationary police officer at trial date. The evidence showing claimant substantially recovered about 18 months after the car accident. Non-pecuniary ( pain and suffering) damages were assessed at $25,000.
Mar v. Young,2009 BCSC 1251, the claimant, a mechanical engineer then aged 40, suffering soft tissue thoracic and lumbar injury in rear end collision. Plaintiff continuing to suffer pain at trial 4 years later. Court’s awards including $50,000 for non-pecuniary damages and $30,000 for loss of future earnings.
Morrison v. Gauthier, 2009 BCSC 1271, the claimant age 43 at trial sufferred injuries in a heavy-impact rear-end collision. Evidence established the claimant’s main injury was to her lower back, with causation of L4/5 disc bulge proven . Plaintiff’s ongoing back pain ending her status as an elite athlete, her main recreational endeavour. The claimant managed to continue working at the same high level as before the motor vehicle accident in her job as a sales representative and loss no income.Court assessed non-pecuniary damages at $55,000 for pain and suffering.
Dulay v. Lachance, 2012 BCSC 258- The claimant, 52 years old suffering injuries when broadsided by defendant’s car at an intersection. At trial 5 years later, plaintiff proving his right knee osteoarthritis was rendered symptomatic by the accident. He received cortisone shots in his right elbow and his right knee. Evidence also proving his right knee limitations giving rise to a real possibility of future loss of earnings. Court awarding plaintiff $132,601, including non-pecuniary damages of $75,000 and loss of future earnings of $40,000.
$90,000.00 Combs v. Moorman, 2012 BCSC 1001- The Plaintiff suffering various injuries when her car, waiting to turn left, was rear-ended and pushed into an oncoming car. Principal injuries consisting of a hip injury, diagnosed as a labral tear, and ongoing back pain affecting her work. Court assessing non-pecuniary loss at $90,000.
Kean v. Porter 2008 BCSC 1594- This 56-year-old taxicab driver was rear ended. The court accepted a persisting, but very mild, sequelae from the mild traumatic brain injury affecting cognition. The court also concluded that the effects on the claimant’s cognition were so subtle as to be virtually indistinguishable from the effects from the other operating causes, namely pain, pain medication, and depressed mood. The claimant was awarded $180,000 for general damages.
Courdin v. Meyers,2005 BCCA 91- the jury awarded the claimant a total amount of $1,456,500.00 for injuries suffered in a rear-ended car accident, $950,000 for pain and suffering non-pecuniary general damages. The Court of Appeal reduced the award to $200,000. The medical evidence was that she continued to deteriorate and that her prognosis was “very guarded”.
The amount awarded for pain and suffering depends on many factors including the claimants age, prior health, level of physical activities, severity of the injury and the prognosis for full recovery.
All of these ICBC claimants had a personal injury lawyer working for them and went through the trial process to obtain a court award. Most cases however are settled out of court with ICBC and thousands of cases are used as an aggregate guide as all cases are assessed individually.
The Future of Compensation for Pain and Suffering in BC
While the rest of Canada is discussing getting rid of caps on awards for pain and suffering the current government in BC and ICBC may be pushing for legislated limits on these types of awards.
The impact of pain and suffering on quality of life has been acknowledged by the Federal Government. Effective April 1, 2019 Veterans will likely be able to choose to receive the Pain and Suffering Compensation as monthly payments for life, or to cash the monthly amount out for a lump sum payment. The purpose of the Pain and Suffering Compensation is to recognize and compensate a serving member or Veteran for the pain and suffering experienced as a direct result of disability and the impacts on quality of life and family.
Caps on awards for pain and suffering establish arbitrary compensation which act as a one size fits all and show to increase claim costs and the amount of administration involved in personal injury cases.
Unless the government legislates arbitrary caps, compensation for pain and suffering arising from rear end accidents will continue to provide some reasonable solace for innocent victims of personal injury in British Columbia.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.