ICBC Claims: How Damages Are Assessed
Assessing damages in a personal injury claim is a complicated process, part art and part science. But there are some basic principles that are used. The principles differ depending on what category, or “head of damage” is being assessed.
The first head of damage is called “non-pecuniary” damages. This head covers compensation for pain and suffering, loss of enjoyment of life and loss of lifestyle. These are called non-pecuniary damages because in contrast to income lost from time off work or the cost of medical expenses, these damages cannot be calculated strictly in pecuniary, i.e. money terms.
Non-pecuniary damages are assessed on an individual basis, but there are some factors that should always be considered. These factors are: age of the claimant; (b) nature of the injury; ( c) severity and duration of pain; (d ) extent of disability; (e) the degree of emotional suffering; (f) effect on the claimant’s lifestyle; (g) the impairment of family, marital and social relationships, and (h) degree of impairment of physical and mental abilities.
Having assessed these factors, the claimant’s case is then compared to awards made in other similar cases. This will usually establish the range of possible awards. Arguments are usually over what cases are truly similar - no two cases are ever exactly alike - or where in the range of possible awards the claimant’s case will fall.
Past wage loss is calculated as past wage net after taxes. the general principle is to put the claimant back into the position they would have been had the accident not occurred. Complications can arise where the claimant has received wage loss benefits from an insurer other than ICBC, has taken sick days, or has received wage continuation from their employer while they are off work and injured, and whether these should be deducted from the wage loss claim.
Special damages are expenses that can be specified, such as payment for medication. They must be proven to have been reasonably necessary and related to the accident injuries in order to receive recovery. Usually this will mean that the expense must be recommended by a health care professional or vocational consultant.
Future income losses usually arise from two different scenarios, and are assessed differently depending on the scenario.
The first scenario is where the claimant is unable to return to their previous occupation but an alternative employment has been found, or the claimant is unable to return to work altogether. The future income loss can be assessed as the difference between what they could have earned before the accident and what they will be able to earn in future.
The second scenario is where the claimant is able return to their previous work but because of their injuries it is probable or possible that in the future they will have income loss.
In this second situation, the possibility of future wage loss is determined by the answers to a series of questions: (a) has the claimant been rendered less capable overall from earning income from all types of employment; (b) is the claimant less marketable or attractive as an employee to potential employers; (c ) has the claimant lost the ability to take advantage of all job opportunities which might otherwise have been open to him had he not been injured, and (d) is the claimant less valuable to himself as a person capable of earning income in a competitive labour market?
Assuming the claimant has established the possibility of future income loss caused by the accident injuries, the assessment then turns to the how likely that possibility is. Frequently the future loss of capacity award is assessed using the claimant’s annual income, and then multiplying or dividing that income, depending on the degree of possibility the loss will occur.
Damages for the costs of future care must first be shown to be reasonably necessary and related to the injuries suffered. A conservative approach is taken to this head of damage. As with the cost of past care, i.e. special damages, this usually means that at minimum the expenditure costs is recommended by a health care professional or a vocational consultant.
This article is for general information only, and should not be relied on as legal advice in any particular case. Consult a lawyer for advice on your case.