ICBC will be aggressive on trying to place every injury claim in “minor injury” category to cap compensation at $5500 for pain and suffering
In most cases where you suffer an injury that was caused by the negligence of another motorist, you are entitled to a claim for non-pecuniary damages. That is a legal term for an award of damages because of pain and suffering along with loss of enjoyment of life.
In 1978, the Supreme Court of Canada capped the amount of non-pecuniary damages that you can recover in a personal injury lawsuit at $100,000, adjusted for inflation. By the end of 2018, the figure is around $382,000 being the maximum recovery in Canada for any injury. Therefore, even the most severely injured person (e.g. severe brain injury with quadriplegia) only gets $382,000 for non-pecuniary damages.
For accidents following April 1, 2019, if ICBC and/or the CRT designate your injuries as being a “minor injury” you are only entitled to $5500 in pain and suffering adjusted for inflation. You can be rest assured that ICBC will be aggressive on trying to place just about every injury claim in this category to save substantial amounts of money on the backs of injured victims. For a full review of the new no-fault scheme introduced in 2018 please review the previous section of this book.
Assuming your claim is outside of the “minor injury” category or the accident predates April 1, 2019, the amount of non-pecuniary damages is usually determined by way of legal case precedents. In other words, the amount that Courts have awarded for similar types of injuries in previous cases is used to determine the award for your case. The difficulty can be that other cases may have some similarities but will also have many differences. There is seldom a single case that you can point to that is similar on all fronts. Therefore, the best approach is to find some relatively similar cases and argue a range of non-pecuniary damages.
If you do not want to pursue your claim through a lawyer, the best thing to do is go to the government web site (http://www.courts.gov.bc.ca) and search this judgment database to find similar cases.
The problem with finding similar cases is that they may not have an influence on ICBC if you are self-represented. ICBC tends to “lowball” self-represented individuals offering a fraction of what the claim is worth even when faced with compelling evidence to support the claim.
Soft tissue injuries usually bring $1000 to $1500 for every month the claimant is injured. A two- year lasting injury should bring $30,000 to $40,000. For a chronic pain case, judgments are in the range of $60,000 to $85,000 and sometimes up to $140,000.