$60,000 Awarded for Persistent Chronic Soft Tissue Pain in ICBC Injury Case

In the recently published case of Tarzwell v. Ewashina, 2011 BCSC 1464, Mr. Justice Dley awarded $60,000 in general damages to a plaintiff injured in a rear end motor vehicle accident in 2007. The court found that the plaintiff’s injuries were significant enough to cause the plaintiff to changed her lifestyle. It found that she could no longer engage in rigorous athletic endeavours and was restricted in the intensity and frequency of her recreational pursuits.

 

Loss of Earning Capacity in ICBC Injury Case

 

Justice Dley also found that the plaintiff had to give up on a plan to become a personal trainer due to her injuries. Instead, the plaintiff had decided to study as a radiology technician. The court found that this amounted to a loss of earning capacity due to the fact that the plaintiff needed to take an extra year of school because of the forced reduction in her course load due to her injuries and because becoming a personal trainer may have provided her with a salary greater than that of a radiology technician.The court awarded $60,000

 

Plaintiff Attacked for Failing to Regularly Consult Doctors in ICBC Injury Case

 

The plaintiff’s case was made difficult because she had attended very few times with her family doctor regarding her injuries. Justice Dley noted that the plaintiff found herself “under attack for failing to regularly consult with doctors or therapists”. However, the court found that the plaintiff had done all that was required of her in the circumstances. In that regard, Justice Dley said the following:

 

[66] Ms. Tarzwell did not continually return for medical advice, since she knew what was expected of her. Ms. Tarzwell did not let the injuries become all consuming. She tried to carry on with her normal activities as best she could. Her efforts to resume her recreational and employment activities, albeit with pain, do not indicate that she was not injured or had recovered.

 

[67] If a plaintiff’s claim was to be measured by the number of doctors seen or by the number of medical consultations attended, then that would unjustly marginalize victims such as Ms. Tarswell. She has chosen not to burden the medical system with unnecessary visits to physicians who would give her no further advice than what she had already been provided and followed. She should not be penalized for that.

 

Low Velocity Impact Logic Rejected in ICBC Injury Case

Justice Dley also rejected the unsound proposition underlying ICBC’s low velocity impact program (i.e. no vehicle damage means no injury). ICBC’s lawyer proposed that the court should be skeptical of the plaintiff’s claim that she was injured in the accident because the impact between the vehicles was minor, given that there was no damage to either vehicle. To that argument, Justice Dlay said the following:

[51] There was an impact between the vehicles. Even if one accepts the defendant’s version of the collision, as being minor with no resulting physical damage to either car, that does not default to an assumption that injuries could not result or must be minor. The severity or extent of damage to a vehicle is not determinative of the consequences of the vehicle occupants.

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