$479,546 Awarded to Plaintiff for Fractured Thoracic Spine & Disabilities in ICBC Injury Case

In the recent decision of X. v. Y., 2011 BCSC 944 (names withheld by court order), the Plaintiff an RCMP officer sustained significant and life-altering personal injuries as a result of an accident which occurred while he was responding to an emergency call related to the collapse of a pedestrian bridge over a highway. While travelling to the scene the officer, who was operating a motorcycle, was cut off by a large truck making an illegal u-turn. Liability for the accident was admitted. No contributory negligence was found on the part of the officer.

Thoracic Spine Injury in ICBC Injury Case

As a result of the accident, the officer suffered a fracture in his thoracic spine which required surgery. His spine was fused and rods and screws were used to stabilize his spine. As a result of the injury the officer was permanently disabled and unable to do heavy bending, lifting or twisting and could no longer make arrests out of a patrol car, engage in motorcycle riding, heavy gardening or heavy home maintenance duties. Prior to the accident the officer was healthy and exceptionally fit.

The Court awarded the officer $140,000 in non-pecuniary damages. On this point, Madam Justice Dardi wrote:

[169] It cannot be overstated that the assessment of non-pecuniary damages is necessarily influenced by the individual plaintiff’s personal experiences in dealing with his injuries and their consequences, and the plaintiff’s ability to articulate that experience: Dilello v. Montgomery, 2005 BCCA 56 at para. 25.

[170]I have concluded that as a result of the accident, the plaintiff has suffered pain and a loss of enjoyment of life. The consequences of his injury are permanent.

[171] In terms of his enjoyment of athletics, his lifelong outdoor pursuits have been significantly curtailed. His injuries have restricted his participation in many recreational activities and competitive athletic endeavours that he pursued so passionately prior to the collision. He is a former triathlete with a considerable competitive drive who is no longer able to run, cycle or swim. He derived considerable pleasure from his excellence at athletic pursuits and that was a vital component of his identity. He prided himself on his ability to protect others and to embrace any type of challenge.

[172] I have also considered as a factor in my assessment the adverse emotional impact of the plaintiff’s inability to pursue the type of active police work from which he so clearly derived satisfaction.

[173] His injuries have also impacted his family life; the plaintiff’s limitations have inevitably created a strain on his marriage. He can no longer perform heavier household tasks such as heavy gardening, cleaning, maintenance, and repairs. He is unable to do many physical and recreational activities such as skiing and the more strenuous hiking and camping that he and his wife had previously enjoyed doing together.

[174] Significantly, the plaintiff has been unable to lift up his young daughter since the collision, which has created a genuine emotional strain on him. He also clearly finds it distressing that he is and will continue to be unable to participate with his daughter in the more adventurous physical and recreational activities that, but for his injury, he would have pursued.

[175] The totality of the evidence supports a finding that prior to the collision, he was a very stable individual with an outgoing personality and a very positive outlook. He now faces uncertainty about the potential for deterioration and is burdened with anxiety regarding his future. He struggles with episodic bouts of frustration and irritability. He is more withdrawn in his social interactions. Prior to the collision, he was a very energetic and enthusiastic individual; Corporal B. described him as a “go-getter”. As a consequence of coping with his condition, he now suffers from markedly reduced stamina and increased fatigue.

 

The Court further awarded the officer $180,000 for a loss of future earning capacity and a total of $52,000 for past and future loss of housekeeping capacity.

 

In Trust Awards in ICBC Cases

While the officer was largely successful, his in trust claim for his wife was denied. This claim failed as a result of it not being properly plead in the lawsuit and only brought up at the end of the lawsuit in closing submissions. On this point Madam Justice Dardi wrote as follows:

[241] Such an award is made to a plaintiff in trust for a non-party family member as compensation for the additional work performed by that family member on account of the impaired capacity of the plaintiff to perform housekeeping chores or to care for themselves: Bradley at para. 43.

[242] In Bradley, the Court of Appeal addressed the issue of the extent to which a claim for past in-trust services ought to be pleaded. Without deciding the appeal on the pleadings point, the Court of Appeal, at para. 47, cited with approval the observation of the court in Star v. Ellis, 2008 BCCA 164 at para. 21, that such a claim should be specifically pleaded under the heading of special damages.

 

[243] In this case, although the statement of claim requested special damages, those damages are not particularized and there was no reference to an in-trust claim. The claim was raised for the first time during the plaintiff’s closing submissions at trial. I conclude that to allow the claim when it was introduced at such a late stage of the trial would result in prejudice to the defendants; they were not afforded an opportunity to test the claim on cross-examination. In the result, I decline to make any in-trust award.

 

Special Damages to be Restorative 

The officer, who had been an avid camper, also failed to make out his claim for a $10,000 tent-trailer, which he purchased so that he could continue camping with his family and $3,000 for basement renovations. On those points the Court said as follows:

[281] It is well established that an injured person is entitled to recover the reasonable out-of-pocket expenses they incurred as a result of an accident. This is grounded in the fundamental governing principle that an injured person is to be restored to the position he or she would have been in had the accident not occurred: Milina at 78.

 

[282] However, this compensatory principle mandates that expense claims be limited to those which are restorative as distinct from those which would put the plaintiff in a better position than before the accident: Cooper-Stephenson, Personal Injury Damages In Canada, 2d ed (Toronto: Thomson Canada, 1996) at 134. Moreover, remoteness may limit the recovery of damages: Cooper-Stephenson at 134. Based on these principles, I am not persuaded that the defendants should be liable for the purchase of a tent-trailer that the plaintiff never owned before the accident or for the renovations to his home after the accident that were not occasioned for any rehabilitative purpose.

 

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