ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for May, 2016

$45,000 Non-Pecuniary Assessment for “Persistent Episodes of Low Back Pain”

May 1st, 2016

Reasons for judgment were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for a persistent low back injury.

In the recent case (Jones v. McLerie) the Plaintiff was involved in a 2011 rear-end collision that the Defendant admitted fault for.  The collision caused a low back soft tissue injury that persisted to the time of trial with symptoms flaring with heavier physical activity.  In assessing non-pecuniary damages at $45,000 Mr. Justice Saunders provided the following reasons:

[37]         I find that Mr. Jones continues to be significantly affected by persistent episodes of low back pain triggered by heavier physical exertion. Mr. Jones struck me as a somewhat stoic individual, inclined to understate the impact of his condition. He is the sole breadwinner of his young family, and he seems determined not to let his symptoms substantially interfere with his life. That having been said there have been some restrictions imposed on his physical activities and his enjoyment of life has been negatively impacted, to a relatively minor though not insignificant extent, and his relationships with family members has been adversely affected….

[39]         Exercise – or the lack thereof – has been and will be a key component in his recovery. I am struck by Dr. Helper’s opinion that Mr. Jones has a “good probability of maintaining his low back symptoms at a mild degree of severity with a dedication to fitness…”. I am not, contrary to the submission of the defence, going to reduce Mr. Jones’ damages award for a failure to mitigate by reason of him not having undertaken a regular exercise program; the strains of coping with a young family and with changes in his employment have, in my view understandably, led to him not making exercise a priority. However Dr. Helper’s assessment has brought home how critical exercise will be. Mr. Jones, with a young family to care for her, would appear to be strongly motivated to dedicate himself to exercise recovery program that will, as Dr. Helper says, maintain his symptoms at a mild degree of severity.

[40]         There is, of course, a risk that he will not do so, but in that eventuality any worsening of his symptoms would, going forward, substantially arise from his own failure to mitigate, limiting the defendant’s responsibility…

[50]         I assessed his general damages in the amount of $45,000.