ICBC Law

As previously discussed, a common occurrence following a collision is the onset of symptoms in a pre-existing, but otherwise asymptomatic, conditions.  Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, highlighting and assessing damages for such a scenario.

In this week’s case (Zawislak v. Karbovanec) the Plaintiff was involved in a 2009 rear-end collision.  Fault was admitted by the opposing motorist.  The Plaintiff had pre-existing, asymptomatic, degenerative disc disease in his spine.  The collision rendered this condition symptomatic resulting in on-going chronic symptoms.  In assessing non-pecuniary damages at $60,000 Madam Justice Gerow provided the following reasons:

[31] Dr. Cameron, a neurologist, examined Ms. Zawislak on August 24, 2011. He found signs of muscle spasm in her shoulder muscles and neck muscles, left side predominant. In Dr. Cameron’s opinion, Ms. Zawislak suffered a soft tissue injury and musculoskeletal injuries to her neck, shoulders and upper back in the motor vehicle accident. Ms. Zawislak has developed headaches associated with the neck pain as a result of the musculoskeletal injuries to her neck and shoulders that she sustained in the accident. In Dr. Cameron’s opinion, Ms. Zawislak remains partially disabled because of the ongoing upper back pain, headaches and neck pain which had resulted from the soft tissue injuries and musculoskeletal injuries in the form of a whiplash she sustained in the motor vehicle accidents.

[32] According to Dr. Cameron, 80% of the individuals over the age of 40 have degenerative disc disease and most of those individuals go around without pain until a trauma, such as a motor vehicle accident, renders their disc disease symptomatic. Trauma makes the asymptomatic condition symptomatic. Ms. Zawislak’s neck was partially degenerated and, in his opinion, her ongoing pain in her neck, with the attendant headaches, and her back are likely caused by the motor vehicle accident…

[44] In my view, the evidence establishes that the probable cause of Ms. Zawislak’s headaches, neck pain, upper back and shoulder pain is the motor vehicle accident exacerbating the pre‑existing asymptomatic degenerative disc disease. While there was some risk of her degenerative disc disease becoming symptomatic, the medical evidence was that it was likely it would not become symptomatic absent a trauma. In my opinion, this case falls within the “thin skull” rule as opposed to the “crumbling skull” rule enunciated in Athey, and the defendants are liable for Ms. Zawislak’s injuries even though they may be more severe than expected due to her pre‑existing condition…

[49] Having considered the extent of the injuries, the fact that the symptoms are ongoing three years after the accident with very little improvement, that the prognosis for full recovery is guarded, as well as the authorities I was provided, I am of the view that the appropriate award for non‑pecuniary damages is $60,000.

Reasons for judgemet were released last week by the BC Supreme Court, New Westminster Registry, assessing damags for injuries sustained in multiple collisions.

In last week’s case (Bansi v. Pye) the Plaintiff was involved in two collisions, the first in 2005, the second in 2008.  The Plaintiff was faultless for both collisions focussing the trial on an assessment of damages.  The Plaintiff suffered varoius injuries which were recovering when they were aggravated by the secod crash.  These included various soft tissue injuries and headaches which were expected to last indefinatly and to limit the Plaintiff in his trade in construction management.  In assessing non-pecuniary damages at $75,000 Mr. Justice Jenkins provided the following reasons:

[33] Also at page 7 of her report of January 11, 2011, Dr. Caillier listed “The Injuries of Issues Related to the MVA No. 2 dated April 25, 2008” as follows:

1.         Cervicogenic headaches

2.         Cervicogenic dizziness

3.         Left hearing complaints. . .

4.         Exacerbation of pre-existing symptoms involving the neck, upper back, and lower back regions.

5.         Soft tissue musculoligamentous injury involving the neck, upper back, and posterior shoulder girdle and lower back region.

6.         Further aggravation of degenerative changes within the lumbar spine.

7.         Altered mood and anxiety.

8.         Worsening of sleep disturbance.

9.         Further decrease in ability to participate in the functional, recreational, and vocational activities of his choosing.

[34] Further at page 9, Dr. Caillier stated:

It is my opinion, given the chronicity of Mr. Bansi’s physical symptoms, both following that of the first motor vehicle accident as well as ongoing since the time of the second motor vehicle accident, the likelihood of him becoming pain-free is very poor…

[42] The two MVAs have had a significant negative impact on Mr. Bansi’s lifestyle and quality of life. Mr. Bansi had previously been very active and energetic whether in working on home renovations, exercising at the gym, cycling, washing family vehicles, participating in family events, services and prayers at the temple, working at household chores including maintenance of the gardens and yard, driving family members for appointments, shopping and much more.

[43] Since the MVAs, he has had considerable difficulty driving for any significant time, he no longer looks after the family gardens and yard, rarely socializes with family or at the temple, lacks motivation, spends more time alone in his suite at the family home, rarely takes care of his young niece and nephew, no longer goes on bike rides with his sister and has clearly had significant problems in carrying out his duties on construction sites. Not only has he had difficulty performing the work, his productivity is considerably impaired and what were simple physical tasks now take much longer. His employers have also noted his decrease in production and energy on the work site which I will address further in his claim for past loss of income and diminished earning capacity…

[52] …Considering that the injuries sustained by Mr. Bansi are not seriously challenged, his lower back injury is likely permanent, having to start his rehabilitation over again after the 2008 MVA will have an impact on his psyche, the difficulties he is having in performing previously simple tasks which were part of his job as a construction manager, the likelihood of him having to persevere with chronic pain in the future, and the resulting loss of enjoyment of life, I find an appropriate award of non-pecuniary damages to be $75,000.

Adding to this site’s archived BC soft tissue injury cases, reasons for judgement were released earlier this year by the BC Supreme Court, Victoria Registry, assessing damages for chronic soft tissue injuries caused by a motor vehicle collision.

In the recent decision (Hammond v. Meeker) the Plaintiff was involved in a 2008 rear-end collision.  Fault was admitted by the rear motorist.   The Plaintiff was 7 months pregnant at the time and the impact was “substantial“.

The Plaintiff suffered from soft tissue injuries to her neck and upper back which continued to produce symptoms including headaches and pain at the time of trial.  The symptoms were expected to continue “for an indefinite period of time“.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000 Mr. Justice Curtis provided the following reasons:

[20] I find on the evidence that the sum of $40,000 is reasonable and fair compensation to Ms. Hammond for the pain and suffering and loss of enjoyment of life inflicted upon her by the February 9, 2008 collision.  She has suffered a soft tissue injury to her neck and upper back, the significant symptoms of which, particularly headaches and pain and stiffness in the neck, have not resolved in the four years since the collision, and will likely continue for an indefinite period of time in the future.  While the injury and symptoms do not actually prevent any particular activity, they make many activities painful and not enjoyable to the extent that she does not do them.  This has been particularly difficult for her given her position as a home maker with two small children and for a while three with B.T. as a foster child.  On the other hand, I accept Dr. Christie’s opinion that her injury will not require surgery, nor will it make osteoarthritis more likely.

Adding to this site’s archived posts of BC non-pecuniary damage assessments for chronic headaches, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this topic.

In last week’s case (Fell v. Morton) the Plaintiff was involved in a 2009 rear-end collision.  Fault was admitted by the rear motorist.  The Plaintiff suffered from pre-existing neck and upper back pain along with “headaches that were brought on by exertion“.  Following the crash she suffered soft tissue injuries to these regions along with a recurrence of frequent migraine headaches.   These aggravated symptoms continued to the time of trial and the prognosis for full recovery was poor.  In assessing non-pecuniary damages at $65,000 Madam Justice Fenlon provided the following reasons:

[23] Having considered all of the evidence, I find that Ms. Fell suffered soft tissue injuries to her upper neck and back as a result of the accident. I further find that those injuries triggered a recurrence of migraine headaches that had been almost entirely in remission since the birth of her first son.

[24] The migraines initially occurred twice per week, gradually decreasing to about once or twice each month by the time of trial. Ms. Fell’s headaches are debilitating, involving nausea and extreme sensitivity to light and sound. They sometimes last for two or three days, and all Ms. Fell can do is lie in a darkened room. She could not attend her wedding reception in Mexico in April 2010 because of a migraine headache…

[28] I find that prior to the accident Ms. Fell tended to suffer regularly from neck and upper back pain and headaches that were brought on by exertion. She sought regular massage therapy and chiropractic treatment in relation to those symptoms. She also had a proclivity to develop migraine headaches, and that condition meant she was susceptible to something else triggering her headaches in future.

[29] Ms. Fell should not be compensated for her pre‑existing condition or the potential for it to reoccur quite apart from the injuries sustained in the motor vehicle accident…

[38] Ms. Fell is a stoic individual whose attitude in the face of life’s difficulties is to get on with it, in her words, “to suck it up”. She should not receive a lower award of non-pecuniary damages because of that stoicism. Indeed, to the contrary, it is appropriate to include under this head the suffering she endured while she pushed herself to keep working after the accident, despite her injuries.

[39] In summary, the injuries from the accident have affected all areas of Ms. Fell’s life. While she has periods of time when she is unaffected by her injuries, in particular when she avoids exertion, she has curtailed her recreational activities, no longer camping, exercising at the same level, or taking her dogs for on-leash walks with her husband. She has found it difficult to pick up her children and cannot interact with them when she has a migraine. However, as I have earlier noted, I must also take into account her pre‑existing condition and proclivity to develop migraine headaches.

[40] Taking all of these considerations into account, I set non-pecuniary damages at $65,000.

While an at-fault motorist is free to deny liability when sued for damages (even in obvious circumstances) doing so can create bad optics and be met with judicial criticism.  Such a result was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.

In last week’s case (Eng v. Titov) the Plaintiff was stopped waiting to yield to traffic when he was rear-ended by the Defendant’s vehicle.  The Defendant denied fault in the lawsuit and maintained this position until shortly prior to trial.  Madam Justice Allan found there was no good reason to deny fault for so long and provided the following criticism:

[31] Mr. Eng also experienced significant stress as a result of the defendant’s denial of liability.  To suggest that Mr. Eng could have been, in any way, responsible for the accident, is unsustainable. Nevertheless, although ICBC did not charge Mr. Eng any deductible for the repairs to his car, the defendant denied liability in its pleadings and maintained that position through its Trial Management Brief and up until January 19, 2012. Mr. Eng is a professional driver with a Class 2 licence and is understandably proud of his driving record and driving skills. As a professional driver, he is responsible for the safety of his passengers. He was upset and frustrated that he was blamed for an accident that he could not have avoided…

The Plaintiff suffered chronic soft tissue injuries and headaches following the collision.  In assessing non-pecuniary damages at $40,000 the Court made the following findings:

[26] Soon after the accident, Mr. Eng experienced severe pain in his shoulders and neck, restricted range of motion, and headaches.  Mr. Eng’s injuries have plateaued in the last year.  He still suffers from pain to his neck and shoulders and occasional headaches about once every month. The headaches still last several hours and he needs to sleep to clear the headache. Overall, his sleep is 90% improved.

[27] The plaintiff suffered severe episodes of lower back pain that lasted two or three days.  They have not occurred for the past year. His right knee problems resolved after about six months. His irritable mood and short temper have improved although his girlfriend and best friend still find him changed for the worse in that regard.

[28] While the acute phase lasted only a few months, his condition is chronic and unlikely to improve significantly.  His neck and shoulders become tighter when he is driving as he is constantly turning to look in mirrors. His level of pain and discomfort fluctuates but he is now used to a nagging pain which is always present and he has good days and bad days.  As Dr. Koo testified, a person with chronic pain has to adjust to “the new normal”.

[29] Mr. Eng is not disabled. He is able to do most of his day-to-day activities although the pain and discomfort fluctuates from day to day.  Mr. Eng is a stoic plaintiff and he should not be penalized for continuing to work hard at a stressful job that exacerbates his neck and shoulder difficulties.

[30] Dr. Koo agreed, in cross-examination, that Mr. Eng’s best possibility for an optimal outcome would be to quit his job and devote himself to therapy and exercise.  Such a plan is clearly impractical as he needs to work and take care of his son and his parents.  However, Mr. Eng agrees that his condition would likely improve somewhat if he returned to swimming and exercise and is prepared to devote some time to those activities…

[32] His continuing injuries prevent Mr. Eng from working overtime driving shifts for which he can bid from time to time.  Overtime is given to drivers on the basis of seniority.  However, Mr. Eng readily agreed that his responsibilities to his son and parents also restrict his ability to work overtime.

[33] Mr. Teed, counsel for the plaintiff, referred me to cases involving comparable injuries where the Court awarded $45,000 to $60,000.  On the other hand, Mr. Langille relied on cases that suggest the appropriate award would be $25,000 to $30,000.   Each case is unique. I would describe Mr. Eng’s injuries, which have not resolved almost three years after the accident, as moderate soft tissue injuries. They are chronic, ongoing – albeit fluctuating – and will probably continue indefinitely. On the basis of the evidence and awards in roughly comparable cases, I conclude that a fair and reasonable award is $40,000, taking into account the extent of Mr. Eng’s initial injuries and his continuing myofascial pain in his neck and shoulders. The fluctuating pain is exacerbated by his work activities and he is restricted in engaging in physical activities that he enjoyed before the accident.

Plaintiffs should not be punished with reduced damages in a personal injury claim simply because they are stoic in dealing with their injuries.  Reasons for judgement were released yesterday by the BC Supreme Court, Nanaimo Registry, discussing this in the context of a chronic soft tissue injury claim.

In yesterday’s case (Courtney v. Huthinson) the Plaintiff was involved in a 2008 rear-end collision.  The Defendant admitted fault for the crash.  The Plaintiff, a 48 year old logger, suffered a chronic soft tissue injury to his neck which produced symptoms of pain and headaches.  The symptoms continued on to the time of trial and were not expected to further recover.

Despite the chronic nature of the Plaintiff’s injuries he carried on with a stoic attitude minimizing his complaints.  In assessing non-pecuniary damages at $70,000 Madam Justice Power made the following findings with respect the Plaintiff’s injuries and his stoicism:

[16] Dr. MacKean’s opinion was that Mr. Courtney had suffered a Grade two whiplash associated disorder to the cervical spine and upper back with persistent daily neck pain greater on the right than left side, and headaches. She is of the opinion that the ongoing persistent neck pain and headaches is due to injuries sustained in the accident.

[17] Of significance Dr. MacKean noted that:

He has most likely reached the point of maximal medical improvement. It has been almost 3 years following the date of motor vehicle accident and he has not seen significant improvement over the past two years with regards to improvement in his neck pain symptoms.

[18] Dr. MacKean in her report and in her evidence noted that the disc degeneration seen in the MRI was less likely the cause of the ongoing pain he was experiencing since it was asymptomatic prior to the accident…

[23] Mr. Courtney came across in his evidence as a quiet man who was committed to his personal health and fitness and who was conscientious and proactive about pursuing his treatment options. He did not appear to exaggerate or overstate his evidence. When he made errors in his evidence for example with respect to his work history, he acknowledged them and any errors appear to be reasonable based on the passage of time, and Mr. Courtney’s knowledge. He is clearly a hardworking man who has worked through pain caused by the accident in order to provide for his family. The ongoing pain is primarily neck pain which is aggravated by activities which require neck extension and occasional headaches. I do not have any difficulty in accepting the evidence of Mr. Courtney. Based on the evidence I would characterize Mr. Courtney as a stoic individual…

[44] I have already found Mr. Courtney to be a stoic individual who does not complain and indeed his return to work post-collision is consistent with the behaviour of a hardworking, stoic individual. As noted, he should not be penalized as a result of his stoicism.

[45] In all of the circumstances, I conclude that an appropriate sum under this head is $70,000.

Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, assessing damages for chronic headaches and an aggravation of a low back injury caused by a motor vehicle collision.

In last week’s case (Drodge v. Kozak) the Plaintiff was injured in a 2006 two-vehicle collision on Vancouver Island.  ICBC admitted the crash was the fault of the other motorist.  Following the collision the Plaintiff suffered various injuries including chronic post-traumatic headaches.  The Plaintiff argued that these were caused by a traumatic brain injury sustained in the crash.  Madam Justice Dardi rejected this argument finding that the Plaintiff did not suffer a brain injury.  The Court did, however, find that the headaches were causally linked to trauma sustained in the collision.  In assessing non-pecuniary damages at $85,000 the Court made the following findings:

[106] I have concluded that the constellation of symptoms that Dr. Smart bases his concussion diagnosis upon are not sufficiently specific to be diagnostic. I prefer Dr. Teal’s opinion that it is unlikely that Mr. Drodge sustained a mild traumatic brain injury. I find that the headache, cognitive, and other symptoms attributed by Dr. Smart to post-concussion syndrome are non-specific symptoms. I accept Dr. Teal’s evidence that there are “multiple reasons for dizziness, for headaches, for sleep disturbances, for mood disturbance … they are not necessarily post-concussional symptoms.” Further, the expert evidence establishes that cognitive difficulties including poor concentration and mood disturbances can develop as a consequence of severe headaches.

[107] In summary on this issue, I have concluded that on balance the preponderance of the evidence does not support a finding that Mr. Drodge suffered either a mild traumatic brain injury or concussion/post-concussion syndrome.

[108] Although I have concluded that the evidence falls short of establishing a diagnosis of concussion/post-concussion syndrome, I do accept that Mr. Drodge has suffered chronic headaches and associated cognitive symptoms for some four and a half years since the accident…

[120] In the end the question of Mr. Drodge’s prognosis is difficult. Taking into account all of the opinion evidence of the experts which conflicted on this point, I have concluded that Mr. Drodge is not likely to make a full recovery. While Mr. Drodge may be able to develop better coping strategies to manage his pain more effectively, and may experience some corresponding improvement in his headache symptoms as well as his back symptoms, there is only a small chance that he will improve to the degree that he will be employable…

[143] While the authorities are instructive I do not propose to review them in detail as they only provide general guidelines. I have reviewed all of the authorities provided by both counsel, and considering Mr. Drodge’s particular circumstances, and compensating him only for the increase in the exacerbation of his low back symptoms and not for the effects of his pre-existing back condition that he would have experienced in any case, I conclude a fair and reasonable reward for non-pecuniary damages is $85,000.

Adding to this site’s ICBC Case Summary Archives, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, assessing non-pecuniary damages for a traumatic brain injury sustained in a BC vehicle collision.

In this week’s case (Meghji v. Lee) the Plaintiff was struck by a vehicle while walking in a marked cross-walk in 2003.  Both the Defendant driver and BC Ministry of Transportation and Highways were found at fault for the crash.  The former for failing to keep a proper lookout while driving, the latter for designing the intersection at question with inadequate overhead lighting.  The driver was found 90% at fault with the Ministry shouldering 10% of the blame.

The Plaintiff suffered a fracture near her left shoulder, left elbow, ankle, knee and a traumatic brain injury.   The consequences of these were expected to cause permanent dysfunction.  In assessing non-pecuniary damages at $125,000 Mr. Justice Johnston provided the following reasons:

[270] Based upon the evidence of Dr. Ali and Mr. Brozak of the substantial change noted in Ms. Meghji during this time, as supported by similar observations from Ms. Chauncey’s and Ms. Wyeth’s description of Ms. Meghji’s abilities in her math class and as a teaching assistant before the accident, I conclude that Ms. Meghji has more likely than not suffered a brain injury in the accident, and that the combination of the effects of the brain injury and the depression and chronic pain disorder, which I also find was caused by the accident or flows from injuries suffered in the accident, are so inextricably intertwined that they cannot possibly be disentangled.

[271] In all of the circumstances, the defendants are ordered to pay Ms. Meghji $125,000 for non-pecuniary damages for pain, suffering, and loss of amenities and enjoyment of life.

This case is also worth reviewing for the Court’s application of the ‘adverse inference’ principle.  In the course of the lawsuit the Plaintiff’s lawyers had her assessed by a neurologist.  The neurologist did not tender evidence at trial.  Mr. Justice Johnston used his discretion to draw an adverse inference in these circumstances finding that the privately hired doctor likely did not have helpful evidence to give in support of the Plaintiff’s claim.  The court provided the following reasons:

Reasons for judgement were released last month by the BC Supreme Court, Duncan Registry, assessing damages for PTSD and chronic headaches following a motor vehicle collision.

In last week’s case the Plaintiff was involved in a 2005 collision.  Fault for the crash was admitted focusing the trial on the value of the claim.   The Plaintiff suffered from some pre-existing difficulties including depression and anxiety.  The collision caused new injuries including pain, headaches and PTSD.  Mr. Justice Rogers assessed non-pecuniary damages of $90,000 and then made a modest reduction to take the pre-existing condition into account.  In assessing damages the Court provided the following reasons:

[32] Turning to the plaintiff’s injuries, the overall weight of the evidence paints a clear picture: before the traffic accident the plaintiff had some depression and she was sometimes anxious. The breakdown of her marriage and the emotional upheaval and fiscal uncertainty that flowed from that breakdown fuelled her depression and anxiety. Both conditions were sufficiently active as to prompt her to obtain medical attention. The plaintiff’s depression and anxiety were, therefore, present and active maladies before the accident. The plaintiff did not, however, suffer from post-traumatic stress disorder or from pain in her neck, jaw and face, and the plaintiff did not suffer from migraine or neuralgic headaches. The plaintiff was not fatigued and her ability to function in everyday life was not limited in any significant way. After the accident the plaintiff does now, and will in the future continue to, suffer from myofascial pain in her face and jaw. She does, and will continue to, suffer from periodic migraine and neuralgic headaches. Her neck will be sore after physical activity. She will be fatigued and socially withdrawn. These changes in her life have deepened her depression and made her more susceptible to anxiety…

[34] That said, the plaintiff’s pain, headaches and post-traumatic stress disorder were not features of her life before the accident and there was no measurable risk that, absent the accident, they would have become features of her life. Likewise, the plaintiff’s difficulties with memory and concentration were not a problem before the accident. Although the plaintiff argued that these latter problems stemmed from a minor traumatic brain injury, I find that that they are, in fact, a product of the effect on her mentation of pain, depression and anxiety.

[35] On an overall assessment of the whole body of the evidence at trial, I am satisfied that the plaintiff’s claim for non-pecuniary damages should be reduced by a relatively modest amount in order to accurately reflect her pre-existing emotional condition. I fix that reduction at 10 percent of the total.

[36] I find that were it not for her pre-existing condition, I would have fixed the plaintiff’s non-pecuniary damages at $90,000. I find that after subtracting the pre-existing condition, the plaintiff is entitled to judgment for general damages of $81,000.

This judgement is also worth reviewing for the Court’s discussion of principle of adverse inference.  The Plaintiff did not call her family physician in support of her claim.  ICBC argued that the Court should draw an adverse inference as a result.  Mr. Justice Rogers refused to do so and in dismissing ICBC’s argument the Court provided the following comments:

[31] I also accept the opinions of the plaintiff’s medical treaters. I am not worried about the lack of evidence from the plaintiff’s family physician. It was he who referred the plaintiff to specialists, and it was those specialists who diagnosed and treated the plaintiff’s accident-caused symptoms. The family physician’s evidence would, in my view, likely have consisted of little more than confirmation that the specialists were engaged and progress was made under their care. As such, I am confident that the family physician’s evidence would have added little new into the mix.

Although stay-at-home parents are becoming less and less common many parents still take several years away from the workforce to raise their children in their infant and pre-school years.  Often times these parents intend to return to work after their children attend school on a full time basis.

When a parent in these circumstances becomes disabled from working due to the fault of another can they make a claim for loss of income in their tort action?  The answer is yes provided there is evidence establishing  a likelihood of returning to employment absent the accident related disability.   Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with this area of law.

In last week’s case (Carr v. Simpson) the Plaintiff was seriously injured in a 2005 motor vehicle collision.  The Defendant admitted fault and further admitted that the crash injured the plaintiff but took issue with the value of her claims for various damages including for income loss.

The Plaintiff, a 39 year old mother of three at the time of the collision, was out of the workforce for several years prior to the crash.  She spent these years working as a home-maker and raising her children.  She undertook some modest employment as a house cleaner shortly prior to the crash.  Following the crash she became disabled and did not return to any work from the time of the crash to the time of trial.

The Court accepted the Plaintiff sustained serious, permanent and partly disabling injuries due to the crash.  The Plaintiff sought damages of $84,000 for lost income from the time of the crash to the time of trial.  She argued that she had planned on returning to the work force once her children became school-aged (which was around the time of the crash) but was precluded in doing so as a result of her injuries.  The Defendant disagreed arguing that the Plaintiff suffered only a modest loss of income because of her “inconsistent work history (and) lack of incentive to work because of income from other sources.”

Mr. Justice Bernard sided with the Plaintiff and awarded her most of what she sought for past income loss.  In doing so the Court provide the following useful reasons addressing the reality that parents that leave the workforce to raise young children can still succeed in an income loss claim:

[132]     I reject the notion that Ms. Carr’s unemployment history during her child-rearing years made her return to the workforce less realistic or less likely. Ms. Carr did not harbour fanciful ideas about her capabilities, her income-earning potential, or her opportunities for employment. When her youngest child reached school age, Ms. Carr was relatively young, energetic, able-bodied, willing to work hard, prepared to accept modest wages in exchange for her labours, and was fortunate to have a brother who could offer her steady, secure, and reasonably well-remunerated employment.

[133]     The evidence establishes that Ms. Carr, shortly before the collision, was motivated to earn some income (e.g., from housecleaning) until her youngest child was enrolled in school; thereafter, she planned to seek more fulsome employment. I do not accept the defence submission that Ms. Carr lacked the incentive and/or need to earn an income; to the contrary, since she has been unable to work because of her injuries she has, with some reluctance, turned to her mother for ongoing loans of relatively large sums of money, just to get by.

[134]     Ms. Carr became a single parent as of June 1, 2005. I find it highly likely that this new status would have impelled her to take the employment her brother offered, and to do so immediately. Her newly poor economic circumstances would have necessitated that Ms. Carr make child-care arrangements to bridge the time until her youngest child was in school in September 2005, and would have motivated her to work as many hours as she could manage as a single parent. Similarly, I am satisfied that she would have made any necessary arrangements for the care of her father.

[135]     I also find it is highly likely that Ms. Carr, as an employee of her brother, would have worked the hours and received the rates of pay assumed by Mr. Bush in his calculations. I find it is most unlikely that the seasonal aspect of the work would have reduced Ms. Carr’s overall income. Any shortage of work in the slow season would be offset by the demands of the busy season, and I am satisfied that Ms. Carr would have adjusted her life, accordingly.

[136]     While I am unable to agree with the plaintiff’s submission that in the determination of past wage loss there should be no reduction for negative contingencies, I am satisfied, for the relatively predictable period in question, the reduction must be minor.

[137]     Having regard for all the foregoing, I assess the plaintiff’s past wage loss at $75,000.

This case is also worth reviewing for the Court’s discussion of non-pecuniary damages.  The Plaintiff sustained numerious injuries including soft tissue injuries to her neck and upper back, Thoracic Outlet Syndrome, headaches and dizziness, a right hand and wrist injury which required surgery, a meniscus tear that required surgery, low back pain and depression related to chrobic pain.  In assessing non-pecuniary damages at $100,000 Mr. Justice Bernard provided the following reasons:

125]     Ms. Carr has, at age 44, many years ahead of her. As a result of the defendant’s negligence, Ms. Carr has been permanently partially disabled and left with constant and chronic pain. Since the collision, Ms. Carr has undergone two surgeries and endured considerable pain and discomfort. Ms. Carr has developed TOS and surgery is not recommended. She suffers from clinical depression related to the negative effect her injuries has had upon her, her family, and her way of life. Ms. Carr’s mental acuity and concentration has slipped. Ms. Carr’s marriage ended six months after she sustained her injuries. Her husband was unsympathetic and frustrated by her lack of desire for sex due to her discomfort. Ms. Carr has been rendered unemployable for most jobs in a competitive market. She is now unable to enjoy most leisure activities and active social pursuits with her children. She has a special fondness for horses and gardening, but meaningful participation in activities related to these interests is no longer feasible. Ms. Carr has lost much of the satisfaction from gainful employment, and the purpose and dimension it gives to life. In short, the negligence of the defendant has had a profoundly negative and lasting impact upon Ms. Carr.

[126]     I agree with the plaintiff’s position that the Djukic case is most similar of the proffered cases on its facts. I also agree with the defendant’s submission that Ms. Djukic’s pain was more severe than that of Ms. Carr; otherwise, I am persuaded that Djukic a useful reference point for the upper end of a general damages award in this case; and that Cimino is instructive in determining the lower end.

[127]     Having regard to all the foregoing, I assess Ms. Carr’s general damages at $100,000.