Reasons in the case of Doho v. Melnikova, 2011 BCSC 703 were published today. The plaintiff was a 32 year old Korean-born mortgage specialist who was injured in motor vehicle accidents in 2006 and 2009. Both accidents were rear-end collisions. The plaintiff sustained significant injuries in the first accident, including a disk hernia in his lower back which impinged on his spinal nerves and caused him severe pain for three to four months after the accident. The plaintiff was left with ongoing low back discomfort, which would be increased by lifting, playing sports and sitting & standing for long periods of time. The Court found that, as the medical evidence showed that surgery was not an option, this condition would be permanent. Accordingly, Mr. Justice Rogers awarded general damages of $80,000 to the plaintiff. The Court also awarded $5,000 in general damages in respect of the second accident, which aggravated the plaintiff’s symptoms and caused a significant increase in pain for a week.
The Court found that, given the busy real estate market in 2007 in the Lower Mainland, the plaintiff would have maintained a high level of production in 2007 had he not been injured, as there were no impediments to his continuing to maintain lucrative relationships he had built with condominium sales people over the years. The Court awarded damages of $121,000 for lost income in 2007 and an additional $20,000 for each of years 2008, 2009 and 2010. In addition, $20,000 was awarded to compensate the plaintiff for limitations to his ability to “pursue mortgage business as vigorously as he did before the accident”.
Failure to Mitigate
Another noteworthy point is that the trial judge dismissed ICBC’s argument that the plaintiff could have avoided some or all of his losses if he had exercised more and lost weight. In doing so, he said the following:
…Mr. Doho’s back pain is such that if would not, in my view, be reasonable to require him to undertake strenuous exercises. Neither would it be reasonable to require him to spend a lot of time swimming at a pool – time devoted to swimming would necessarily reduce either his business activity or life at home with his wife and children.
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