Family law, Velletta & Company, Victoria, BC

Special Considerations for New Mothers in Personal Injury Actions

Our office recently resolved an ICBC claim for a young woman who suffered soft-tissue injuries in a motor vehicle accident while she was five months pregnant.  Of particular interest in this case was the calculation of a non-pecuniary damage award (sometimes called “pain and suffering” damages).

Quite often, when a party suffers “soft-tissue” injuries, courts and ICBC adjusters will focus primarily on the nature of the injury and its duration.  However, courts have held that non-pecuniary damages are to be assessed on a case by case basis, as the injured party is to be compensated for their “loss of enjoyment of life”, considering a number of factors, including their age, disability, emotional suffering, impairment of family and social relationships, loss of physical and mental ability and lifestyle.

For a new mother, a even a relatively minor car accident can cause a world of difficulty and upheaval.  In last year’s case of Mezo v. Malcolm, 2013 BCSC 1793, the judge gave special consideration to the losses suffered by a Plaintiff who was three months pregnant while injured in a motor vehicle accident, and who had injuries that interfered with her maternity.  In making an award of $60,000 for non-pecuniary damages, the judge considered as follows:

[133]     The plaintiff was a young, fit woman at the time of the Accident.

[134]     The plaintiff’s pregnancy at the time of the Accident added to the fear she felt and impacted on her ability to achieve any pain relief. I accept her evidence that she chose to endure the pain rather than risk damage from medication to her unborn child.

[135]     After the baby’s birth, her neck, back and arm pain interfered with her ability to care for her baby. She lost the opportunity to breastfeed her baby after a short period of time. For a conscientious contemporary mother, this was a serious loss.

[136]     Her ability to lift the baby was compromised due to her back and neck pain. One of the joys of motherhood is to hold the infant close. Losing this opportunity is another serious loss. Having her mother enjoy this pleasure no doubt was helpful to the baby’s wellbeing, but it does not replace the disappointment suffered by the plaintiff.

(Emphasis Added)

In this case, the judge recognized that the loss of ability to breastfeed, and to hold and bond with the child, were serious losses.  In addition, if a new mother is put to additional stress and worry about the health of her child because of the accident, this would be a relevant consideration in favour of a higher award – again, the overiding principle is to compensate the injured party for their loss of enjoyment of life.