In the recently published case of Power v. Carswell, 2011 BCSC 1672 , Madam Justice Gray considered issues of liability and damages in respect of a motor vehicle accident which occurred in Kamloops, B.C. in November 2006.
Soft Tissue Injury and Ruptured Disc in ICBC Accident Case
The accident occurred at an intersection in Kamloops controlled by traffic lights. As a result of the accident the plaintiff had suffered continuous pain in her lower back and hips, as well as periodic pain in her left shoulder and neck.
The defendant was planning a left turn at the intersection prior to the accident. The accident occurred in the intersection when the front of the plaintiff’s vehicle struck the rear passenger side of the defendant’s vehicle. The plaintiff claimed that she had a green light upon entering the intersection and was travelling at under 50 km per hour before seeing the defendant’s vehicle in front of her. The defendant claimed to be turning on an amber light. An independent witness gave evidence that the defendant had actually entered the intersection when the light facing him was red. The court accepted this evidence and found the driver wholly responsible for the accident.
The court awarded the plaintiff $70,000 in non-pecuniary damages for a moderate soft tissue injury to her chest, left neck, back, left shoulder, lower back and left leg, as well as a disc rupture in the low back resulting in “chronic back pain”. In respect of this award, Justice Gray said the following:
 At the time of the Accident, Ms. Power was an enthusiastic, energetic, and talented hairstyling teacher who loved her job. The job required her to spend most of her work day standing, much of it with her hands above her head cutting hair.
 Ms. Power suffered moderate soft tissue injuries to her chest, left neck, left shoulder, and lower back in the Accident. The Accident caused a subligamentous disc herniation at L4-L5 which has caused her significant pain in her lower back. Despite painful treatment by cortisone injections into her hips and epidurally, her pain persists.
 Ms. Power now experiences hip and lower back pain which limits her ability to sit, stand, walk, and bend. She also experiences shoulder pain which limits her ability to hold her hands near or above shoulder level. As a result of these limitations, she can no longer work as a hairstyling teacher. Ms. Power made significant efforts following the Accident to continue in that line of work, but even with significant modifications, she was not able to do so on a prolonged basis. She has made the reasonable decision to pursue a different career which will more likely suit her physical capacity.
 As a result of her injuries, Ms. Power is also less able to care for herself and her family. For example, she has difficulty styling her own hair and doing laundry and other chores.
 As a further result of her injuries, Ms. Power suffers pain and is less able to enjoy recreational activities. For example, she is less able to go on long walks, to dance, and to sit for long drives or movies.
 The purpose of an award of non-pecuniary damages is to provide solace to Ms. Power for such things as pain, suffering, inconvenience, and loss of enjoyment of life. Non-pecuniary losses are the personal injury losses that have not required an actual outlay of money. One purpose of an award of damages for non-pecuniary losses is to substitute other amenities for those that Ms. Power has lost. The award must address losses Ms. Power suffered not only to the date of trial, but also those that she will suffer in the future.
 Non-pecuniary losses have no objective ascertainable value, because there is no market in health and happiness. It is generally not possible to put a claimant back in the position she would have been in had the injury not occurred, and this is especially true of non-pecuniary loss. The Court must fix a sum that is tailored to Ms. Power, and that is moderate but fair and reasonable to both parties, keeping in mind that Ms. Power will be fully compensated for her future care needs and other pecuniary losses. The Court does not try to assess a sum for which Ms. Power would have voluntarily chosen to suffer such pain, inconvenience, and loss of enjoyment of life.
 In all the circumstances, an appropriate award for Ms. Power’s non-pecuniary losses is $70,000.
Loss of Earning Capacity and Retraining in ICBC Injury Case
Justice Gray also found that the plaintiff was entitled to an award for diminished earning capacity reflecting the cost of her retraining and her remaining loss of physical capacity. In that regard the court said as follows:
 It was reasonable for Ms. Power to take steps to pursue a career which will be compatible with her physical abilities. She will be more readily employable in her injured condition following that education. There was no evidence regarding whether Ms. Power will be likely to earn more or less as a social worker than she earned as a hairstyling instructor.
 The benefits of a Bachelor of Social Work degree will largely offset the disadvantages arising from Ms. Power’s physical limitations arising from the Accident. However, she will still be less valuable to herself as an employee because of her physical limitations.
 Ms. Power is entitled to an award for the loss in her earning capacity which reflects both some of the costs of retraining and the remaining loss of physical capacity. The present value of the retraining costs for the four years of tuition and books is about $21,650. Because of Ms. Powers physical limitations, it is not reasonable for her to do substantial work outside the academic program, although she may be able to perform part-time work during her studies. She was earning about $25,000 per year, and therefore would lose about $100,000 in earnings during the period of completing such a program.
 Damages must be assessed, not calculated, and must be fair to both parties. The contingencies include the possibility that Ms. Power would have pursued the retraining even if the Accident had not occurred, that more opportunities will be available to her because of an increased level of education, and that she will experience difficulty obtaining employment and will suffer periods of unemployment as a result of her physical difficulties.
 A fair award for Ms. Power’s lost earning capacity is $80,000.
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