In Cyr v. Kopp, the Plaintiff was injured in a rear end motor vehicle accident. Liability was admitted by ICBC’S lawyer on behalf of the Defendant. The Plaintiff advanced an ICBC claim for numerous heads of damages, including non-pecuniary damages, income loss, and diminished earning capacity. A live issue for the Court to consider was whether or not the Plaintiff had fully and properly mitigated his damages.

 

The Plaintiff alleged to have suffered from Grade 2 soft tissue injuries to his neck, which had also affected his pre-existing shoulder injury.

 

At the time of trial, the Plaintiff’s prognosis was unknown, as the Court found that the Plaintiff had not properly mitigated his damages, by not properly following the advice of his medical practitioners with respect to treatment. As such, he had not fully recovered from his injuries.

 

By the time of trial, the Plaintiff had endured his injuries for over five years. The Court would award $75,000.00 for non-pecuniary damages, but would reduce this to $60,000.00 for lack of full and proper mitigation.

 

[120]     The medical experts are in agreement, and I find, that the plaintiff likely suffered a grade 2 whiplash injury as a result of the MVA.  That injury affected the plaintiff’s right cervicothoracic region, extending to the right shoulder.  He also experienced the onset of migraine headaches.

 

[121]     I accept the plaintiff’s evidence that these MVA-related injuries continue to persist.  I also accept Dr. Bowlsby’s opinion that, while they should have healed long ago, the pain fibers in some people do not turn off over time and sometimes get worse.  Dr. Bowlsby opined that, in his experience, approximately 10% of people who suffer whiplash injuries prove to be difficult to treat and those injuries can be a source of significant and sometimes permanent disability.

 

[122]     I am unable to conclude that the plaintiff is one of those 10% because he refused to initiate the physiotherapy treatments that were repeatedly recommended by his medical practitioners.

 

[131]     Here, the plaintiff’s pre-existing right shoulder injury was continuing to cause him pain and discomfort at the time of the MVA.  The MVA caused him to suffer an upper body soft tissue injury which continues to persist.  His prognosis for recovery continues to be unknown.

Each ICBC injury claim decided upon by a Court is very fact specific, and any award granted is very dependent on the unique set of circumstances that the case presents. Courts look at previously decided cases to help them determine a proper amount to award for ICBC injury claims. Counsel for the Plaintiff will typically present a list of cases for the Court’s consideration, as will ICBC’S lawyer. Quite commonly, the Court will arrive at a number in between the two. Lack of mitigation on the part of the Plaintiff can also sometimes result in a deduction from the amount of damages awarded in ICBC injury claims.

 

In Roth v. Hes, the Plaintiff was injured in a motor vehicle collision, and consequently brought an ICBC claim for non-pecuniary damages, past diminished earning capacity, future diminished earning capacity, the costs of future care, and out of pocket expenses. Liability was admitted by ICBC’S lawyer. The Plaintiff alleged to have suffered from soft tissue injuries, mainly to her back and shoulder. By the time of trial, approximately 3 1/2 years after the accident, the Plaintiff maintained she stiff suffered from these injuries. The Court found, based on the medical evidence, that the Plaintiff suffered from chronic pain disorder and sleeping difficulties at the time of trial, and awarded the Plaintiff $90,000.00 for pain and suffering.

 

[82] The plaintiff is a 40-year-old woman and suffered soft tissue injuries primarily in her back and shoulder area. She continues to suffer from chronic pain disorder and experiences sleeping difficulties. She has a pre-accident history of lower back and right knee pain complaints which would likely have continued even if the accident had not occurred.

 

[83] The plaintiff’s lifestyle has suffered as a result of the accident. While I consider her to be far from totally disabled, she has lost the enjoyment of working on her and her husband’s hobby farm and the lifestyle that it provided to her. To some extent, as stated by Dr. Laidlow, this has resulted from the plaintiff becoming overly protective in relation to her injuries. With continuing appropriate rehabilitation and treatment I expect that the plaintiff’s condition will improve and she will gradually return to some of her hobbies around her property.

 

[86] The plaintiff has been unable to perform a number of household chores that she could before the accident. Her social life has been impacted by the accident as she has been unable to entertain guests for dinner parties as she did in the past. She and her husband have also not enjoyed the intimacy they experienced before the accident.

In Visona v. Stewart, the Plaintiff was injured in a low impact motor vehicle collision, and subsequently brought an ICBC claim for damages for pain and suffering, loss of income, diminished earning capacity, and out of pocket expenses. Liability was admitted by ICBC’S lawyer, however causation and quantum (amount) of damages were in dispute. The Plaintiff suffered soft tissue injuries to her neck, back, and hip. The Plaintiff alleged that she suffered from chronic pain in her tailbone, however the Court rejected that this was caused by the accident. The Court ruled that the Plaintiff had recovered from her soft tissue injuries within two years of the motor vehicle accident, and awarded $30,000 for pain and suffering.

 

[38] As a result of the November 23, 2009 accident, Ms. Visona suffered soft-tissue injuries to her neck, back and left hip, and a bruise to the left side of her knee. Based on my finding above that Ms. Visona suffered from these injuries for a period of at most two years, the authorities quoted by the defence are more applicable in assessing damages for pain and suffering. In contrast, the submissions from counsel for Ms. Visona took into account ongoing low back pain almost four years after the accident, and emotional considerations such as the breakup of Ms. Visona’s marriage and difficulties in her relationship with her daughter, neither of which can be related to the November 23, 2009 accident.

[39] Awards of damages for pain and suffering from other cases act as a guide but are not determinative as to appropriate compensation for the injuries. I agree that each case must be considered on its own merits, and consideration of an individual’s situation makes the assessment of damages a very subjective task. The decisions referred to which are of some assistance are Mr. Justice Verhoeven’s decision in Carter v. Zhan, 2012 BCSC 595, and Madam Justice Maisonville’s decision in Vela v. MacKenzie, 2012 BCSC 438. In those cases, the learned judges awarded non-pecuniary damages of $35,000 and $27,000, respectively.

[40] I find, in light of all of the evidence, that Ms. Visona is entitled to non-pecuniary damages of $30,000.

 

Each ICBC injury claim decided upon by a Court is very fact specific, and any award granted is very dependent on the unique set of circumstances that the case presents. Courts look at previously decided cases to help them determine a proper amount to award for ICBC injury claims. Counsel for the Plaintiff will typically present a list of cases for the Court’s consideration, as will ICBC’S lawyer. Quite commonly, the Court will arrive at a number in between the two. Lack of mitigation on the part of the Plaintiff can also sometimes result in a deduction from the amount of damages awarded in ICBC injury claims.

In Mezo v. Malcolm, the Plaintiff was injured in a rear end collision, and was pregnant at the time. She suffered soft tissue injuries to her neck and back, and endured headaches. She brought an ICBC claim for damages for pain and suffering, diminished earning capacity, loss of housekeeping capacity, and cost of future care. She also made an “in trust” claim for her mother”. By the time of the trial, approximately 30 months after the accident, she was still symptomatic, and her symptoms were expected to continue into the future. She had endured difficulty being able to properly care for her young baby. The Court awarded $60,000.00 for pain and suffering.

[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.

 

[137] The athletic lifestyle enjoyed by the plaintiff, Florin, and the plaintiff’s mother is now beyond the ability of the plaintiff due to her injuries. It is all well and good for Dr. Bishop to say that it is likely her pain will increase with more activity but that does not mean re-injury, but the continuing pain does and will interfere with her activities. Not every accident victim is able to ignore pain to the extent Dr. Bishop seems to suggest is desirable.

 

[138] I agree with Dr. Adrian that she will continue to suffer some degree of disability for the foreseeable future.

 

 

In DeGuzman v. Ge, the Plaintiff was a licensed practical nurse who was involved in a motor vehicle accident approximately two years before the time of trial. She suffered soft tissue injuries to her neck, legs, and shoulders, which lingered at the time of trial. She advanced an ICBC claim for pain and suffering, loss of income, cost of future care, and other heads of damages as well. The Court awarded the Plaintiff $50,000 for pain and suffering.

 

[37] The awarding of damages is an assessment, not a mathematical calculation. Decisions of other trial judges are helpful and provide a range, but each case is fact-specific.

[38] Here, the plaintiff was 50 at the time of the MVA. She has a physically demanding job. She enjoyed a relatively active life away from work. As stated, I accept her evidence and I find that while her pain has reduced since the MVA, she continues to have significant discomfort from her injuries. I find that this has impacted her enjoyment of her work and her relationship with her co-workers. It has also limited the activities she used to enjoy doing away from work, such as cooking, keeping her house and yard, walking, driving for pleasure, and caring for her grandnieces.

[39] In my view, a fair and reasonable award of damages under this heading is $50,000.

In Stull v. Cunningham, the Plaintiff was injured in a car accident, and consequently brought an ICBC claim for damages for pain and suffering, loss of income, diminished earning capacity, out of pocket expenses, and cost of future care. Liability was admitted by the Defendant. The Plaintiff was a tradesman who suffered from soft tissue injuries to his neck and back, which were still unresolved by the time of trial, which was approximately three and a half years after the accident. The Plaintiff‘s injuries were expected to continue into the future. The Court awarded $85,000 for pain and suffering, in addition to $150,000 for diminished earning capacity.

 

[91] Having regard to the totality of the circumstances, I accept the evidence of the plaintiff that he still suffers reasonably moderate neck and back injuries and that this has affected, to a certain degree, his ability to do the same type of work around the house that he once enjoyed, that it has affected his recreational activities to a modest extent, and most significantly, his ability to perform at full capacity in his chosen occupation.

[92] I accept that Mr. Stull is permanently partially disabled because of the injuries incurred in this accident and that his pain is constant and relatively significant. I find that the injuries he suffered in the accident have prevented him from doing all of the installation work he used to be able to do throughout his full work day.

[93] I also accept the evidence of both Mr. and Mrs. Stull that the financial impact of the motor vehicle accident caused significant stress and disharmony in their marriage.

[94] I also agree with counsel for the plaintiff that, by their very nature soft tissue injuries are not always manifested by objective signs. Complaints of soft tissue pain and headaches are subjective in nature. I do note, however, that Dr. Martin saw Mr. Stull in late May 2012 and noted “a mild decreased range of motion.” I accept Mr. Stull’s evidence with respect to the ongoing significance of these symptoms and find that they were caused by the accident and are not a result of normal wear and tear on a back that had been traumatized many years before.

 

In Lumley v. Bolilo, the Plaintiff was injured in a car accident, and subsequently brought an ICBC claim for pain and suffering, diminished earning capacity, out of pocket expenses, and future care. The Plaintiff suffered soft tissue injuries, which primarily resolved themselves after nine months, with occasional flareups. The Court awarded $25,000 in damages for pain and suffering.

 

[45] I conclude that Ms. Lumley’s injuries did not incapacitate her from work; or from any of the social and recreational activities she enjoyed before the accident, although discomfort in her neck and back caused her to limit her physical activities for a few months following the accident. After a few weeks she stopped using prescription medication and relied on occasional use of an over-the-counter analgesic to manage her discomfort. She had resumed her normal activities by April 2010 – nine months after the accident, although she continued to have stiffness and some discomfort in her neck and muscle tension headaches from time to time. She was able to combine a full-time job with attendance at a part-time college course to become a physical fitness trainer; and began working as a trainer while completing the course, in addition to working full-time at her regular job. Although Ms. Lumley testified that she had not improved at all after terminating physiotherapy treatments in February 2010, I conclude that she has made a significant recovery and that her current symptoms are mild and controlled with only occasional use of a non-prescription pain medication.

 

[57] Ms. Lumley is a person who enjoyed a high level of fitness before the accident, and derived an important source of enjoyment and satisfaction from her participation in sports and recreational activities. Ms. Lumley continues to be very fit and active but as a result of the accident, sometimes experiences stiffness or discomfort in her neck; and headaches that her doctor believes are causally related to muscle tension in her neck. While these residual symptoms are not disabling; they do occasionally interfere with Ms. Lumley’s enjoyment of life and in particular, her enjoyment of the sports and athletic endeavours that are so important to her.

In Wong v. Robillo, the Plaintiff was injured in a side impact motor vehicle collision. The court described the impact as severe. Liability was not in dispute. The Plaintiff advanced an ICBC claim for several heads of damages, including pain and suffering, loss of income, diminished earning capacity, and future care. The Plaintiff suffered neck pain, which had largely resolved, but continued to suffer chronic, intermittent lower back pain by the time of the trial, which was less than three years from the time of the accident. The Court awarded the Plaintiff $50,000 for pain and suffering.

 

[5] His main area of complaint is low back discomfort. This is intermittent. It is significantly better than at the time of the accident. The pain is in the lower thoracic, upper lumbar region. It is focal to this area. He finds that repetitive bending of the spine or prolonged sitting for more than a half an hour causes some exacerbation in his back discomfort.

 

[15] The plaintiff still has chronic intermittent lower back pain which affects his endurance and prolonged walking or sitting. Although he is able to carry out most household chores, it is with discomfort. He has dramatically improved, but he has had to live with chronic intermittent pain, anxiety, and uncertainty for almost three years. I would assess his pain and loss of personal amenities past and future at $50,000.

 

In Aubin v. Ball, the Plaintiff was injured in a car accident, and brought an ICBC claim for different heads of damages, including pain and suffering, loss of past capacity to earn income, loss of future capacity to earn income, out of pocket expenses, and cost of future care. Liability was admitted by ICBC’S lawyer. The Plaintiff suffered soft tissue injuries, primarily to her neck, back, and sacroiliac region. By the time of trial, she had endured pain for a little over three years since the accident, with the pain expected to continue to some degree. The Court awarded $75,000 for pain and suffering.

 

[105] I think it is clear, on all of the evidence, that the plaintiff suffered moderate soft tissue injuries in the September 2009 accident and that these negatively affected her life in a variety of ways for quite some time.

[106] There is also little doubt that her injuries have substantially resolved, to the extent that her present difficulties may be succinctly stated to be a Grade II whiplash associated disorder to her cervical spine and upper back (right side), and a lumbosacral sprain injury involving the lower lumbar spine and right sacroiliac region, with muscular pain in her right buttock and right hip region.

[107] In most important ways, I was impressed by the plaintiff as a witness. She struck me as an intelligent and articulate person who, for the most part, had followed the directions of her caregivers and medical advisers and made creditable efforts to get over her injuries and return to her former lifestyle.

[117] With some reluctance I find that Ms. Aubin is likely exaggerating her present difficulties to some degree. On the basis of everything I have heard from her and others, I conclude that she is doing so unconsciously without any active intention to mislead.

[118] However I have no reason to reject the proposition, seemingly concurred in by all the witnesses, expert or otherwise, that Ms. Aubin continues to suffer from back pain related to the accident, and that this condition, in the words of Dr. Njalsson may be “here to stay”.

 

In Strazza v. Ryder, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for pain and suffering, income loss, and diminished earning capacity. The Plaintiff suffered from neck and back pain that was not fully resolved by the time of trial three and a half years after the accident. The Court would award $60,000.00 to the Plaintiff for pain and suffering, after taking into consideration his age, the affect the injuries had on his life, and the medical evidence that suggested that the symptoms were unlikely to completely resolve.

 

[79]        However, as of trial, Mr. Strazza was 29.  He is, therefore, considerably younger than the plaintiffs in the cases referred to by Mr. Ridgway.  That is an important distinguishing factor.  On the evidence that I have accepted, Mr. Strazza continues regularly to experience pain, particularly in the mid to lower thoracic region, as a result of the injuries he sustained in the accident, and this pain is unlikely to resolve completely.  I have therefore found Mr. Strazza’s injuries, and their consequences for Mr. Strazza, to be more serious and long-lasting than what Mr. Ridgway urged on me.  That is also an important distinguishing factor. 

 

[80]        Mr. Strazza is less able to perform physically all of the tasks he was able to do before the accident, and in his current position, he manages to perform what is required of him, but with pain.  Leisure activities, such as working on his car, are now more difficult for him physically, and some (such as volleyball) he has given up altogether.  Routine household tasks, such as lawn-cutting, are painful, although Mr. Strazza can do them.  He requires regular use of medication to control and manage his pain.  Because of the physical demands of the job, Mr. Strazza’s dream of becoming a long-haul truck driver has been threatened as a result of the injuries he sustained in the accident.

 

[81]        Taking into account Mr. Strazza’s age, the effect of Mr. Strazza’s injuries on his day-to-day activities and on his lifestyle in general, including on his career goals, Dr. MacKean’s prognosis that the pain is unlikely to resolve completely, and the cases that have been cited to me, I assess Mr. Strazza’s non-pecuniary damages at $60,000.