$80,000 Award to Plaintiff with Ongoing Neck and Shoulder Pain (Moderate Probability of Chronic Pain) in ICBC Injury Case

In the recently published case of  Keleta v. MacDongall, 2011 BCSC 1259, Mr. Justice Truscott awarded $80,000 for pain and suffering to a plaintiff injured in a motor vehicle accident in October 2008 while driving on Highway One. The plaintiff’s vehicle was struck and run into a centre median by the defendant’s vehicle. Following the accident the plaintiff took two weeks off of work. He sustained soft tissue injuries to his left knee, low back, left arm, left shoulder and the left side of his scapular neck region. The plaintiff re-aggravated his shoulder injury while at work in 2009.

Social Life and Ability to Work Affected After ICBC Accident

The plaintiff claimed that as a result of his injuries his pre-accident activities of doing yard work around the house, swimming and walking his dog had all been seriously curtailed or ceased. He claimed his social life with his wife had been curtailed and their intimate relationship had suffered. He further claimed the he was unable to sit for three or four hours at a time and that he and his wife had cut back on socializing with their friends as a result. The plaintiff was concerned about his future ability to work. He had a grade 12 education and had been driving a cement truck since 1997.

In assessing the non-pecuniary damages, Mr. Justice Truscott said the following:

[63]It may be concluded from all this that the prospect of a chronic injury in the nature of a permanent or indefinite injury is only a possibility, but in Dr. McAnulty’s report he also says that the patient has more likely than not reached the point of maximal medical improvement and that statement reflects a standard of probability and not possibility.

[64] It is my conclusion that Dr. McAnulty considers the shoulder pain to be a chronic or long-lasting pain as a moderate probability, and I will assess the plaintiff’s damages on that basis.

[68] The plaintiff has ongoing pain and he has had to work through that pain to maintain his employment and provide an income for his family.

[69] His recreational activities and family life have also been adversely affected.

[70] I award the plaintiff $80,000 for general damages for pain and suffering and loss of enjoyment of life.

 

Loss of Future Earning Capacity in ICBC Injury Case

The plaintiff argued the he should be awarded an amount between $187,000 and $280,000 for loss of future earning capacity (a reduced ability to earn income in the future) given the nature and extent of his injuries. However, the court disagreed, pointing to a lack of evidence that the plaintiff’s condition would eventually lead to a loss of his employment. Despite that, the court did find some basis for awarding a lesser amount. In doing so Mr. Justice Truscott said the following:

[83] Here the plaintiff has returned to his employment after two weeks and continues on a full-time basis at that employment for close to three years since the accident. While he does say he doesn’t work as much overtime since the accident he also says that he takes overtime work on Saturdays if and when offered.

 

[84] Apart from perhaps less overtime the plaintiff puts in a full day of work and there is no evidence that he has to be accommodated for his injuries. While he is concerned about being able to continue at his job there is no medical evidence suggesting that he will or might have to quit his job or should quit his job.

 

[85] At Dr. McAnulty’s last assessment of the plaintiff on March 3, 2011 he advised the plaintiff to continue activity as tolerated. The plaintiff does not say that he intends to quit his job.

 

[87]Nevertheless I accept that the plaintiff’s injuries may affect his ability in the future to continue at his present employment or at any other employment which involves physical activity and it must be accepted that this is a real and substantial possibility…

[88] The difficulty in this case is that there is no medical evidence supporting a risk that the plaintiff’s employment might be interfered with nor any functional work capacity evaluation and both Dr. McAnulty and Mr. Koretchuk advocate further physiotherapy treatments or other modalities to assist the plaintiff.

[89] Mr. Koretchuk suggests further physiotherapy of once every one or two months at $60 per month as an investment in the plaintiff’s future ability to work and play with minimal pain and discomfort.

[90] Considering all of the evidence I assess the plaintiff’s impaired earning capacity on a capital asset loss basis at $60,000.

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