$55,000 Awarded for Ongoing Shoulder Pain Four Years Post-Accident

In the recently reported case of Lim v. Anderson, 2012 BCSC 263, Madam Justice Fenton awarded $55,000 in non-pecuniary damages (pain & suffering) following a five day trial to a plaintiff injured in a motor vehicle accident in February 2008. The facts of the accident were not in dispute. The court found the following:

[2]On February 14, 2008, Ms. Lim was turning left onto Boundary Road from Lougheed Highway when the defendants’ car ran a red light and collided with the passenger side of her vehicle. Ms. Lim’s passenger had to be removed from the car with the Jaws of Life. Ms. Lim was in considerable pain at the scene and was transported to hospital by ambulance and released the next day.

[3] There is no doubt that the plaintiff was injured in the accident. She had bruising to her chest and both shoulders and her neck and left shoulder and arm were sore. For the first two weeks after the accident she was bedridden. For about six weeks Ms. Lim was unable to bathe, wash or brush her hair or dress herself. Her daughter Megan, then 12, helped her with those tasks, while her husband, from whom she had separated but who to this day lives in the basement level of their home, took over housework and child care of Megan and their then five-year-old son.

[4] For two months after the accident Ms. Lim could not drive and could not return to her job as a casino cashier for four and a half months.

Residual Pain in Neck, Shoulders and Lower Back at Time of Trial

Ms. Lim was in good health before the accident and did not suffer from headaches, neck, back or shoulder pain. Ms. Lim suffered soft tissue injuries in the accident that continued to cause her residual pain in her neck, shoulders and lower back at the time of trial. With respect to the above award, Justice Fenton said the following:

[38] The biggest impact on Ms. Lim in terms of loss of enjoyment of life is her inability to cook using a wok, to do the vacuuming and heavy housework she used to do to keep her home in the meticulous order she enjoyed and to do her own gardening and yard work. Her co-workers describe a woman who is less cheerful than she used to be and is often sore and uncomfortable at work. She can no longer pour tea when they go for dim sum together, something she always did before the accident.

[39] There is medical evidence that suggests that the plaintiff’s soft tissue injuries may further improve with exercise over time, although the evidence supports a finding that her shoulders will not likely improve in future.

Failure to Mitigate in ICBC Injury Claim

ICBC’s lawyer argued that the plaintiff had failed to mitigate (lessen) her damages by failing to follow the advice of her doctors in three ways: by failing to return to exercise; by not continuing with physiotherapy sessions; and by not following a recommendation for further injections or surgery for her shoulders. Justice Fenton dismissed these arguments and held that the plaintiff acted reasonably. In that regard, she said the following:

[18] A preliminary issue I must decide before assessing damages is whether the plaintiff has failed to mitigate her damages. The defendants must prove that the plaintiff failed to follow recommended treatment by a qualified practitioner that could have overcome or reduced her current or future problems…The applicable standard is reasonableness. The defendants must demonstrate that the plaintiff unreasonably refused to follow the practitioner’s recommendations…

(a) Return to Exercise

[20] The overwhelming medical evidence is that Ms. Lim was advised to return to exercising “as she could tolerate”. She completed an active rehabilitation program, and I find she continues to exercise to some extent.

[21] The defendants’ real complaint in this regard is that Ms. Lim failed to follow Dr. Yu’s recommendation to do shoulder exercises at 50 repetitions per day. The plaintiff stopped doing the exercises because they hurt her and did not seem to be helping.

[22] Dr. Yu’s evidence did not support the defendants’ contention that the plaintiff’s failure to do the 50 repetitions per day has impaired her recovery.

(b) Surgery and Injections

[23] Here too, while Dr. Yu listed further injections or surgery as possible further treatments, he did not opine that they would fix the plaintiff’s problems with her shoulders. The injections offered at least temporary relief. The first and only one the plaintiff underwent gave her two months without pain. The plaintiff described the pain relief as “like a miracle”.

[24] It can be implied from the location of the space into which the steroid medication has to be injected, from Dr. Yu’s evidence and from Ms. Lim’s decision not to repeat it every two months despite the relief that followed, that the needle itself is unpleasant. Further, Dr. Yu acknowledged that injections are not always successful and that patients have to balance the pain of the injection against the pain without it. Surgery carries with it risks and time off work.

[25] A plaintiff is only required to do what is reasonable, and I do not find to be unreasonable Ms. Lim’s decision to decline further injections and surgery and to instead use pain medication to control her symptoms.

(c) Physiotherapy

[26] Physiotherapy was prescribed by Ms. Lim’s family doctor in 2008 and again in September 2011, but Ms. Lim did not complete all of the sessions recommended. She found the physio did not seem to be helping her much and pursued other forms of treatment which she found gave her greater relief, in particular acupuncture. I note that the defendants’ own expert held the view that after the first acute phase, physiotherapy would not improve the plaintiff’s injuries.

[27] Even if some of the missed physiotherapy occurred within the acute phase, I find that the reasonableness of a plaintiff’s failure to follow a particular medical recommendation should not be assessed in isolation from her overall efforts.

[28] Considered as a whole, I find that while Ms. Lim’s efforts to mitigate were not perfect, they were reasonable. In addition to regular acupuncture treatments, she saw her family doctor on about 24 occasions, sought treatment from her orthopaedic specialist on seven, went for treatments at Mountainview Kinesiology for active rehabilitation on 37 occasions and for physiotherapy at Eagle Ridge Aquatic Centre on 39 occasions.

[29] In summary, I do not find that the defendants have proven that the plaintiff failed to mitigate.

 

Loss of Future Earning Capacity:

 

This was a central issue in the case. Justice Fenton said the following regarding the legal test for these damages:

[51] As noted by the Court of Appeal in Perren v. Lalari, 2010 BCCA 140, this is a pecuniary head of damages. The plaintiff must therefore prove financial loss due to the impairment from the accident; in other words, if she had not been injured, her future earnings would be higher than they will now be with the injuries.

[52] An assessment of loss of future earning capacity involves consideration of hypothetical events. The plaintiff is therefore not required to prove the hypothetical events on a balance of probabilities. The hypothetical event is to be given weight according to its relative likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 27.

[53] The test is whether the plaintiff has proven that there is a real and substantial possibility that but for her injuries she would earn more money in future. The defendants say Ms. Lim has failed to meet this burden of proof because she continues to work full-time at the same job she had before the accident, is a valued and respected employee who does her job well, and has not missed a day since returning to work after the acute phase of her injury.

The court awarded the plaintiff $50,000. In doing so, Justice Fenton noted the following:

[59] In these circumstances, I find that there is a real and substantial possibility that Ms. Lim may lose her current job in the future.

[60] If she loses her casino position, which currently pays $15.75 an hour and will pay a maximum of $17 per hour in about three years, Ms. Lim will not have open to her the employment opportunities in areas she would realistically have considered prior to sustaining her injuries. When she first moved to Canada, she worked in a restaurant in the kitchen and as a server. For a time in 2002 she worked as a postal clerk at a drug store. Both positions involve repetitive lifting and carrying.

[61] Ms. Lim’s English is relatively poor. Her loss of physical strength has impaired her employability in physically demanding jobs, jobs that she was formerly qualified to do and did.

[62] I find that the [the plaintiff] … has demonstrated a loss of capacity to earn income in the future. I note as well that even within her current job as a cashier, there is a real and substantial possibility that Ms. Lim will accept fewer overtime shifts because of her injuries…

[68] This is not a case in which damages for loss of future earning capacity can be assessed using an earnings approach. Rather, I must use a capital asset approach. In other words, there is no basis for doing a mathematical calculation of income lost per year and then giving a present value for that loss. At the end of the day…the assessment of damages is a matter of judgment, not a calculation.

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