$95,000 Awarded for Disc Herniations in Low Back in ICBC Case

In the recently published case of Ng v. Sarkaria, 2011 BCSC 1643, Mr. Justice Butler awarded $95,000 in general damages (damages for pain & suffering) to a plaintiff injured in a motor vehicle accident in July 2007 on Granville Street in Vancouver. The accident occurred when the defendant made an unexpected left turn in front of the plaintiff’s vehicle. Liability for the accident was admitted. Following the accident, in November 2008 and January 2009, the plaintiff experienced severe pain in his back and right leg. An MRI revealed disc protrusions in his low back. He underwent a partial discectomy in 2009. Following the operation, the plaintiff was able to return to work as a technical field representative for Shaw cable, but was cautious with his activities both at work and at home.
ICBC’s Expert Criticized:
The significant issue in the trial concerned whether the herniations were caused by the accident. In the end result, Justice Butler found that the plaintiff had proven his case. In that regard he said the following. In the process, ICBC’s expert, Dr. Dommisse (orthopaedic surgeon) was criticized by the court for failing to “back up his opinion” by pointing to evidence that would have connected the plaintiff’s disc herniations “to a particular injury or incident at work.” Dr. Dommisse had provided an opinion stating that it was more likely that the plaintiff’s “work-related activities contributed to his back symptoms”. The court also found that Dr. Dommisse had made incorrect assumptions respecting the dynamics of the accident and “the likely forces operating on Mr. Ng’s spine”.
Loss of Future Income:
In addition to his award for general damages, Justice Butler also awarded the plaintiff $260,000 for loss of earning capacity. This award was based on the court’s finding that the plaintiff would have to restrict his activities in the future in order to minimize his pain and avoid aggravating his back condition. In that regard, Justice Butler said the following:

 

[64] My conclusions regarding Mr. Ng’s loss of earning capacity in relation to his past loss of income also apply to his claim for future income loss. The factors that prevented him from working at full capacity after his return to work from the back surgery will continue to restrict his capacity in the future. He will have to continue to restrict his activities in order to minimize pain and avoid aggravating the injury to his lower back. He will not be able to take full advantage of the opportunity to maximize his income as he otherwise would have been able to do in the unique position he holds as a TFR for Shaw. He will continue to perform at a capacity which is lower than he would have performed at had he not been injured. He will not be able to take on all of the jobs, including overtime work he might otherwise have done. In other words, there is no doubt that Mr. Ng’s future earning capacity has been impaired.
[65] In addition to Mr. Ng’s loss of capacity to take on as many jobs as he would have before, he runs additional future risks. According to Dr. Dommisse, seven to ten percent of discectomies fail. In addition, there is a risk of further trauma to the spine. As noted above, Dr. Aitken expressed a concern that Mr. Ng may not be able to continue working indefinitely as a TFR.
[66] There are two possible approaches to the assessment of loss of future earning capacity: the “earnings approach” from Pallos; and the “capital asset approach” in Brown. Both approaches are correct and will be more or less appropriate depending on whether the loss in question can be quantified in a measureable way… This case has aspects which require both approaches. The assessment of the lost stream of income resulting from Mr. Ng’s reduced ability to work is amenable to the earnings approach, while the risk that he may suffer future trauma or a future failure at the L4-5 level can be assessed by the capital asset approach. In any event, the assessment of his future income loss must be approached as a matter of judgment, not calculation…
[67] In relation to his past income losses, I concluded that his loss of capacity would cause him to earn about 10% less than he would have but for the accident. It is on that basis that I concluded his income for 2010 and 2011 would have been $132,000 absent the accident. I reject Mr. Ng’s argument that he would have worked enough to earn $160,000 on an ongoing basis. As I indicated above, he did not establish a pattern of working at that level prior to the accident. I conclude that even if Mr. Ng had not been injured, he would have placed a high priority on his time with his young family and his time away from work. Accordingly, I find that, absent the accident, he would have continued to work at a level where he would earn approximately $132,000 per year. In other words, I conclude he will continue to experience a modest income loss of about 10%.
[68] Mr. Ng attempted to present evidence from an economist showing the effect of an income loss of $1,000 per annum over the course of his working life. I did not permit the evidence to be admitted given its late delivery to the defendants. The tables attached to the report clearly included opinion evidence other than a simple application of the 2.5% discount rate. However, I permitted Mr. Spieker to refer to the table in argument. The table gives a multiplier of $19,942 for every $1,000 of income loss to age 65. The table included survival probabilities but did not include other discount factors.
[69] I have concluded that Mr. Ng’s annual loss of income resulting from his reduced capacity to work is approximately $12,000. However, it would be inappropriate to simply apply the multiplier to this figure to calculate the present value of the loss. Other discount factors must be taken into account including the risk of loss of employment, the possibilities that the remuneration for the TFR position will be reduced, or the TFR position will be eliminated or changed in the future (this seems quite possible given the rapid changes in technology), and the possibility Mr. Ng would retire before the age of 65.
[70] Of course, I must also take into account the other risks outlined above: the risk that Mr. Ng will suffer a further injury to his lower spine as a result of its weakened condition; and the risk that the discectomy will fail.
[71] When I take all of these factors into account, I conclude that the appropriate compensation for Mr. Ng’s loss of capacity to earn income is $260,000.

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