Court awards plaintiff non-pecuniary upper limit cap of $367,000 despite no paralysis or brain injury

In reasons for judgment released today, the court in Wilhelmson v. Dumma, 2017 BCSC 616, awarded the plaintiff the upper limit cap of $367,000 in non-pecuniary damages after suffering “catastrophic” physical injuries (but which did not involve any paralysis or brain injury).  In giving reasons for judgment Madam Justice Sharma wrote:

[168]     Ms. Wilhelmson seeks between $325,000 and $360,000 in general damages for pain and suffering. The defendant says an award of $300,000 is appropriate. There is no dispute that the controlling case law limits the maximum damages available to be $367,000 in today’s dollars.

...

[171]     ... The defendant’s position is that the upper limit for general damages (as per Andrews but converted to today’s currency) is reserved for only the most catastrophic cases, involving severe brain injury or paralysis. So while the defendant accepts Ms. Wilhelmson has suffered severe injuries, he says the upper limit is not justified in this case...

...

[180]     The defendant pointed out that the cases to which he referred where the maximum or near-maximum award was made, all deal with people suffering a different category of injury: severe brain damage that has altered people’s independence and personality. The defendant points out that the plaintiffs in the cases he cites all require near-constant supervision, unlike Ms. Wilhelmson. However, that merely distinguishes those cases rather than providing support for the defendant’s position.

...

[184]     The defendant says the “most” catastrophic injuries that justify the maximum award of damages are only those involving paralysis or severe brain injury. No case was cited to me that stated that principle and in my view, Walker J.’s comment in Sangra are inconsistent with that position.

...

[187]     Non-pecuniary damages are compensation for the intangible impacts the accident has on the plaintiff for pain, suffering and loss of enjoyment of life. The question before me is whether the pain and suffering the accident has caused Ms. Wilhelmson justifies awarding her the maximum or near maximum amount of damages.

[188]     I find that it does and I award her $367,000 in general damages.

[193]     Taking all of these factors into account, I find she is entitled to the maximum award of damages for non-pecuniary damages and I award her $367,000. The plaintiff submitted she is entitled to the maximum, but only sought $360,000 based on counsel’s understanding that the maximum was reserved for cases involving paralysis and/or severe brain injury. I do not find the case law cited to me to support that supposition and therefore the plaintiff is entitled to the maximum.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/06/2017BCSC0616.htm#_Toc479755192