If you are injured in a motor vehicle accident in British Columbia after April 1, 2019, your compensation for pain and suffering (“non-pecuniary damages”) will be limited if your injuries are“ minor injuries” as defined by BC’s Insurance (Vehicle) Act and Minor Injury Regulation.  This amount is $5,500 for accidents that occurred between April 1, 2019 and April 1, 2020, and this amount is increased every year to keep up with inflation. It is important to note that only your non-pecuniary damages are limited, and you will still be entitled to full compensation for your lost income, money spent on treatments, and other provable losses.  For accidents occurring after May 1, 2021, the Minor Injury Regulation no longer applies, and injuries are compensated instead by ICBC’s Enhanced Care model.  Under the Enhanced Care model, in a majority of cases, injured persons are not entitled to compensation for pain and suffering whatsoever.

For motor vehicle accidents between April1, 2019 and May 1, 2021, there is one question on the minds of personal injury lawyers and injured people across BC: “What is a minor injury?”

What is a “minor injury”?

The legislation is written such that most typical motor vehicle accident injuries are “minor injuries”, including bruises, cuts, scrapes, sprains, strains, and whiplash. Therefore, in most cases, it is more useful to ask what is not a “minor injury”.

In this analysis, what matters is not only the injury itself, but the specific incapacity or inability that is caused by the injury.  Taking the legislation all together, the criteria for what is not a minor injury is as follows:

-       Severe injuries including (but not limited to) fractures, non-minor traumatic brain injuries, and spinal cord trauma;

-       Any physical or mental injury that that causes you to be substantially unable, for at least 12 months from the date of the accident, to perform the essential tasks of your work, education, or activities of daily living; or

-       Any psychological or psychiatric condition, including a concussion, that causes you to be substantially unable, for at least 16weeks from the date of that substantial inability, to perform the essential tasks of your work, education, or activities of daily living.

“Physical” vs. “psychological” impairment

The above criteria reveal differences in how the legislation determines whether injuries are minor depending on whether the injuries are “physical” or “psychological”. For a “physical” injury not to be considered minor, it must lead to 12 months of substantial inability, whereas a “psychological” injury only must lead to 16 weeks of substantial inability. Further, for “physical” injuries, they must be a continuing cause of substantial inability from the date of the accident whereas “psychological” injuries only must be a cause of substantial inability from the date that substantial inability begins.

“Substantial inability to perform essential tasks”

In performing the above analysis, the most difficult question to answer is, “What is a substantial inability to perform essential tasks of work or education?” We can think of many examples where this criterion would be satisfied (for instance, a professional baseball player who suffers a career ending injury to their throwing arm).  However, in many cases, the answer is not so clear.  The BC Civil Resolution Tribunal (the “CRT”) has jurisdiction to determine whether injuries are “minor injury”. Unfortunately, there have been no CRT decisions yet to help us answer this question. The only decision so far that comments on what makes up a “minor injury”(found here)does not provide any guidance.

Conclusion

Whether your injuries from your motor vehicle accident are deemed “minor injuries” will depend largely on the evidence the is gained from medical professionals, employers, and educational institutions.  However, until there are further CRT decisions that answer the question of what it means for an injury to cause “a substantial inability to perform the essential tasks”, the outcomes of motor vehicle accident claims will depend largely upon the negotiation abilities of the lawyers involved.