Plaintiff Awarded $80,000 for Disc Injury with Neuropathic Pain in Neck & Upper Limbs in ICBC Case

In the recent case of Lorenz v. Gosling, 2011 BCSC 1250, Mr. Justice Verhoeven awarded $80,000 in non-pecuniary damages (pain & suffering) to a plaintiff injured in a motor vehicle accident in July 2008 when the defendant’s car went through a stop sign in front of her. The defendant driver admitted liability, so the trial concerned the issue of damages only.


Disk Injury in ICBC Case



Following the accident, the plaintiff had treatment for her injuries, including twenty physiotherapy sessions, which failed to provide her with significant relief. At trial, the plaintiff complained of ongoing headaches, neck and arm pain and depression. She alleged that she was suffering from chronic and disabling injuries and claimed over three hundred thousand dollars in damages. The defence argued that the plaintiff’s injuries were not as bad as she claimed the to be and suggested she be awarded something in the range of thirty-five to forty-five thousand dollars for her pain and suffering.

On reviewing the evidence the judge found that there was a “substantial lack of clarity” as to whether the plaintiff’s ongoing symptoms were permanent. While the judge found that there was a substantial risk that they may be permanent, he held that the plaintiff had failed to prove that this was the probable outcome. The court found that the plaintiff had sustained an injury to her cervical spine with a disc bulge and neuropathic pain in her neck and upper limbs. Mr. Justice Verhoeven said of the plaintiff’s injuries:

[47] I accept that Mrs. Lorenz suffers from daily and practically constant head and neck pain, as well as frequent pain in her arms. She also has elbow pain in both elbows, and weakness of grip, particularly in the left hand. Her injuries have resulted in significant ongoing limitations of function.

 

 

[61] While I found the plaintiff to be generally credible, and certainly not a malingerer, I also find that she has somewhat of a tendency, probably subconscious, to exaggerate her difficulties.

 

[68] Counsel for the plaintiff urges me to find that it is probable her pain will continue permanently. However, the evidence does not go so far as to enable me to find that her condition is permanent on a balance of probabilities. It is clear that the plaintiff’s condition has so far been resistant to treatment. On the evidence, the plaintiff has established that there is a substantial possibility of a significant degree of permanence to her condition.

 

[97] After considering all of the authorities cited to me, and on the findings that I have made, I consider that the sum of $80,000 represents a fit and proper award for non pecuniary loss in this case.

 

Loss of Earning Capacity in ICBC Case

 

Turning to the plaintiff’s claim for loss of earning capacity, the court found that the plaintiff’s case was speculative and, accordingly, declined to award damages. Mr. Justice Verhoeven said the following in respect of this claim:

 

[109] In this case, it is possible to speculate that the plaintiff’s condition, if it continues to be resistant to treatment, could potentially result in an income loss in future. Many scenarios can be imagined. If her condition significantly worsens, she may not be able to carry on in work as a deli manager. She may be induced to retire earlier, as plaintiff’s counsel suggests. If she is not able to carry on her work as a deli manager at the grocery store, the range of employment opportunities open to her could be less than they would have been but for the accident injuries.

 

 

[111] … the first question is whether the plaintiff has established that there is a real and substantial possibility of a future event leading to an income loss. There is no medical evidence to support a conclusion that she will not be able to continue in her present work. There is no indication that her functional limitations have or could in future result in loss of her job or inability to engage in her present occupation. There was no evidence that her job is insecure. On the evidence, I am not able to conclude that the possibility of income loss is more than speculative. In all likelihood, even if the plaintiff’s condition does not improve, she will continue in her present employment without suffering a loss of income. There is also the possibility that treatment or natural healing will improve her condition, with time.[112] Therefore the plaintiff has not established a real and substantial possibility of a future event leading to an income loss, and therefore no award of loss of earnings or earnings capacity has been established on the evidence.

 

Travel Expenses in ICBC Injury Case

 

On the issue of travel expenses, the court found that is was reasonable to award the plaintiff fifty cents per kilometer for travel to and from treatments related to her injuries. The court said the following:

 

[115]The defence does not deny that the plaintiff incurred expense in order to travel for medical treatment, but says that the plaintiff has not proven the actual expense.

 

[116] The plaintiff claims travel costs at the rate of $0.50 per kilometre and provides estimates as to the distance involved for trips to Nanaimo hospital from Port McNeill, to Victoria, and others. Travel was by private passenger vehicle. There is no question that the treatment was reasonable and that travel and accommodation expense was incurred. The defence does not suggest that there were other, cheaper alternatives. The defence does not suggest that the rate claimed by the plaintiff is unreasonable, only that it is unproven.

 

[117] I accept the plaintiff’s claim on the basis of it being a reasonable estimate of her actual expense. I therefore allow the special damages in the sum of $5,267.73.

 

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