$40,000 Awarded for Soft Tissue Injuries to Neck & Shoulders in ICBC Injury Case

In the recently reported case of Cameron v. Hsu, 2012 BCSC 56, Madam Justice Hyslop awarded $40,000 in non-pecuniary damages (pain and suffering) following a five day trial to a plaintiff injured in a rear-end collision in November 2008 on Imperial Avenue Way in Burnaby.

ICBC Damages in Rear-End Collision

 

The plaintiff sought damages in the amount of almost $152,000, including $80,000 for non-pecuniary damages and $65,000 for loss of earning capacity.  ICBC’s lawyers argued that the plaintiff should be awarded no more than $25,000 in non-pecuniary damages and be given no award for loss of earning capacity.

 

It was accepted at trial that the plaintiff had a “pre-disposition to myofascial pain in the neck and upper shoulder.  The plaintiff had been in another motor vehicle accident in 2007, but the court found that his injuries from that accident had resolved.  With respect to the award of non-pecuniary damages, Justice Hyslop said the following:

 

[85]         I have concluded that Mr. Cameron did suffer neck and shoulder injuries as a result of the accident. As a result of these injuries he suffered headaches. Those appear to no longer occur or are infrequent.

 

[86]         I also conclude that these injuries caused Mr. Cameron difficulties in certain seasons at which time Mr. Cameron sought physiotherapy to resolve the symptoms.

 

[87]         I have also concluded and take into consideration in assessing Mr. Cameron’s claim for pain and suffering that Mr. Cameron, at the outset, had a tendency to “myofascial pain in the neck and upper shoulders” [Dr. Laidlow] several years before the 2007 accident. I also conclude that before this accident that Mr. Cameron’s injuries from the 2007 accident were resolved. I also conclude that Mr. Cameron has resisted doing exercises designed to assist or improve the mobility and flexibility in his neck and in the area of his upper shoulder.

 

 

[99]         Mr. Cameron, at the time of the trial, continued to suffer from tightness in the shoulder and neck beyond that of his pre-existing condition. Mr. Cameron did not lose time at work and he never thought he should do so or would do so. Mr. Cameron, as confirmed by the evidence of his father, sought medical treatment only when there was something wrong. The evidence is that Mr. Cameron has difficulty with his neck and shoulder when doing office work and not when working on-site and in good weather.

 

[100]     Mr. Cameron chose not to pursue exercise as recommended by Dr. Laidlow and his physiotherapist, so it is difficult to determine the progress he would have made had he done so. Taking that into consideration, I award Mr. Cameron general damages in the amount $40,000.00 for pain and suffering and loss of enjoyment of life.

 

No Award for Loss of Future Earning Capacity in ICBC Injury Case

 

The court made no award for loss of future earning capacity.  Considering the plaintiff’s post accident work history and the medical evidence respecting his physical capabilities, Justice Hyslop found that the plaintiff had failed to “demonstrate” that the accident would lead to future events that would cause a loss of income or earning capacity.

 

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