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.

Posts Tagged ‘bc injury law’

ICBC Criticized For Not Practicing What It Preaches

April 9th, 2019

In recent months both ICBC and the Provincial Government have been vocal in criticizing the use of medico-legal reports in injury litigation resulting in rule changes restricting the rights of litigants in relying on such evidence. In reality ICBC has no reservations seeking out numerous expert reports when it suits their interests in litigation. This inconsistency resulted in critical comments today from the BC Supreme Court.

In today’s case (McNeill v. Saunders) the Plaintiff was injured in a collision and sued for damages. The plaintiff has consented to being examined by a neurologist chosen by the defendant. The Defendant went on to request a further medical exam with a psychiatrist despite the Plaintiff not relying on a psychologist or psychiatrist in their claim. The Court raised concerns about this request and provided the following critical comments about ICBC’s practices versus their public stance on the utility of experts:

[23]         I am concerned about the potential for overlap with the neurologist’s opinion and for the bolstering of that opinion by the psychiatrist. I also accept that a psychiatric assessment is invasive. I also consider proportionality. The fact that the plaintiff is not at this time retaining a psychiatrist or psychologist expert strongly suggests that these injuries are not her main concern. However, the pleadings and the discovery evidence tip the balance here.

[24]         I order that the plaintiff attend the IME as sought in paragraph 1 of the Notice of Application. It is a discretionary order. Rule 11-5(7)(b), where the court is appointing an expert, specifically sets out that the expert can be given appropriate directions. I use that as a guide to my discretion here.

[25]         I direct that the IME must be limited to considering the psychiatric issues in the plaintiff’s pleaded claims of irritability, poor mood and depression, together with any psychiatric component to the sleep disorder, and together with any other evidence respecting psychiatric matters taken at the examination for discovery.

[26]         I order that the IME be limited to considering the psychiatric issues in the plaintiff’s pleaded claims of irritability, poor mood and depression, and any psychiatric component to the sleep disorder claim.

[27]         I order that all notes and any other primary evidence taken at the IME must be promptly provided to the plaintiff, within seven days of completion of the IME.

[28]         I have concerns that this IME will not be of much assistance. It flies in the face of the insurer’s stated public opposition to too many expensive medical reports. It is odd that the defendant, through its insurers, focuses on what would appear to be a relatively minor component of the plaintiff’s claim. However, that is the defendant’s choice.

[29]         I am adjourning the application for costs. That is to be dealt with by the trial judge after the conclusion of the trial.


BC Court of Appeal – OK for Judges To Use Male Earnings Statistics for Female Plaintiff

April 3rd, 2019

Reasons for judgement were published today by the BC Court of Appeal confirming it was not an error in law for a trial judge to rely on male labour market contingencies when assessing damages for an injured female plaintiff.

In today’s case (Gill v. Lai) the Plaintiff was injured in two collisions and proceeded to trial where she was compensated for various losses including future diminished earning capacity.   In assessing this loss the trial judge relied on statistical evidence for men.  ICBC appealed arguing it was legally wrong to do so for a female plaintiff.  The BC Court of Appeal rejected this argument finding that in the circumstances of this case there was no error in relying on male statistics in part because “income statistics may incorporate historic and inequitable gender-based pay differences“.

The Court provided the following reasons:

[52]         The respondent’s expert economist, Mr. Benning, used labour market statistics for males in British Columbia when making an allowance for the negative contingencies of part-time employment and non-participation in the workforce. The trial judge accepted this approach and rejected the submission statistics for females should be used. He did so for two reasons: factors specific to the respondent and a reluctance to use statistics that have the effect of perpetuating discrimination. He wrote:

[130]     In adopting the male labour market approach, I note:

a)    since a young age, the plaintiff has shown a particular adherence to the work force and, in particular, the pharmacy profession;

b)    the plaintiff values financial independence (she saved the funds for the down payment for the Cloverdale home while her future husband studied dentistry in Manitoba); and

c)    the plaintiff’s parents are in their mid-sixties and are still working.

[131]     I am also reticent to give weight to female labour market contingencies which may have embedded discrimination: see Justice Morellato’s discussion in Jamal v. Kemery-Higgins, 2017 BCSC 213 at paras. 96–99.

[53]         The appellants say there was no evidence of any such embedded discrimination. They say Mr. Benning confirmed statistically females are more likely than males to work on a part-time basis and, the appellants say, “there was no suggestion in the evidence such difference arose because of any issues relating to discrimination”.  The appellants argue the only evidence before the judge was female labour market contingencies accurately reflect the real and substantial possibilities for the respondent.

[54]         Judges can and do recognize income statistics may incorporate historic and inequitable gender-based pay differences and, as such, have increasingly taken a cautious approach to gender-based income statistics. In Crimeni v. Chandra, 2015 BCCA 131, this Court said:

[23]        Experts are frequently asked to estimate the income losses by using gender-specific historical income figures. Such figures may be useful where they can fairly be said to be the most accurate predictor of the lost stream of earnings. However, there is authority for the proposition that the use of female earning statistics may incorporate gender bias into the assessment of damages. There is also authority for taking judicial notice of convergence in gender incomes: Steinebach v. O’Brien, 2011 BCCA 302.

[24]        It is certainly not an error, in my view, for a trial judge to recognize that the use of historical data can reflect such bias and, to the extent, the circumstances giving rise to the bias may be expected to diminish, to view the evidence as conservative.

[25]        I can see no error in the judge’s consideration of the plaintiff’s pre‑injury earning potential.

[55]         In my view, the same can be said of labour market contingencies. It is not an error to recognize gender-based contingencies can incorporate bias. Having said that, we must bear in mind the quantification of damages necessitates an individual approach.

[56]         In the case at bar, the trial judge did not fail to deal with the parties before him. The respondent had borne children, made effective arrangements for childcare, participated on a full-time basis in the labour market, and was motivated to continue to participate full-time. It was certainly open to the trial judge to find she was unlikely to be affected by some of the contingencies reflected in female labour market statistics, and there was a reasonable basis upon which he could conclude the use of statistical evidence of contingencies affecting males in the labour market would result in a realistic prediction of the respondent’s future. I would dismiss this ground of appeal.


Court Entitled To Rely on Civil Jury Instructions For Present Value Calculations

March 12th, 2019

When awarding damages for future losses BC Courts have an obligation to use appropriate present value multipliers in arriving at the lump sum awarded.  Normally this is achieved by relying on expert evidence in personal injury cases.  Given the BC Government’s recent restrictions on expert evidence Justices will likely have increasingly fewer such reports to assist them.

To this end an interesting footnote appeared at the end of a recent personal injury judgment.  In the recent case (MacGregor v. Bergen) the Plaintiff was injured in a 2013 collision.  The crash left the plaintiff with residual partial disability.  Damages were awarded for past and future losses.  The Court noted that no expert evidence was led by either party addressing preset value calculations but this was not a problem as the Court could simply rely on the multipliers provided in BC’s Civil Jury Instructions.  In explaining why this was appropriate Mr. Justice Branch provided the following thoughts in a footnote to his reasons for judgement:

Neither party provided expert testimony as to the appropriate present value multipliers. However, I find that I have an obligation to account for the present value of the future losses pursuant to s. 56 of the Law and Equity Act, R.S.B.C. 1996, c. 253. Multipliers are calculated using the designated 1.5% for the present value of future income loss and 2% for any other future losses. The amounts presented for female police officers and female university graduates were determined by inflating the 2015 data provided by Mr. Turnbull to 2018 dollars (resulting in figures of $99,300 versus $67,700), calculating the difference of $31,600, and then applying a present value multiplier of 26.23, assuming a retirement age of 65 (37 years hence). I find that I am entitled to make use of the multipliers provided at Appendix E of the Civil Jury Instructions for this purpose. I note that the court has relied on the Civil Jury Instructions for this purpose in other cases where expert evidence was not made available: Smith v. Fremlin, 2013 BCSC 800 at para. 38; Erickson v. Bowie, 2007 BCSC 1465 at para. 51, footnote 3; Hrnic v. Bero Investments Ltd., 2018 BCSC 1880 at para. 57; Barnes v. Richardson, 2008 BCSC 1349, aff’d 2010 BCCA 116; Duifhuis v. Bloom, 2013 BCSC 1180 at para. 62; Harris v. Ladner Centre Holdings Ltd., 2008 BCSC 1735 at para. 70.


$170,000 Non-Pecuniary Assessment for Hip Injury, PTSD, TOS and Chronic Pain

March 4th, 2019

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a plaintiff who suffered a host of injuries in a vehicle collision.

In today’s case (Firman v. Asadi) the Plaintiff was involved in a 2013 collision.  The Defendant denied fault but was found liable at trial.  The collision resulted in multiple injuries including a torn labrum, thoracic outlet syndrome, PTSD and chronic pain.  Prognosis for full recovery was poor.  In assessing non-pecuniary damages at $170,000 Mr. Justice Verhoeven provided the following reasons:

[145]     Based upon the abundant medical evidence as well as the evidence of the plaintiff and other evidence of the lay witnesses, I find that the plaintiff’s injuries that she attributes to the MVA and as reported to the treatment providers and medical experts were caused by the MVA.

[146]     As noted, there is much overlap in the specific diagnoses found in the medical evidence.  In more general terms, the plaintiff’s injuries sustained in the MVA are: (1) left hip injury, including torn labrum, requiring surgery;  (2) TOS or thoracic outlet syndrome, requiring surgery, and with further surgery recommended; (3) whiplash injuries (myofascial pain syndrome, mechanical spine pain) and resultant chronic pain, particularly in her upper back, left shoulder, and arm; (4) left shoulder tendinopathy; (5) chronic headaches; (6) mood or psychological/psychiatric disorders, including depression, somatic symptom disorder, and anxiety.

[147]     The defendants dispute the diagnosis of PTSD, made by Dr. Schweighofer. Dr. Iso noted PTSD “symptoms”.  In the circumstances of this case, the question of whether the plaintiff fully meets the criteria for this diagnosis is of little practical consequence. Dr. Waraich noted that her symptoms meet the DSM-5 criteria for PTSD, with one exception. He states that, while a diagnosis of delayed onset PTSD could be made, in his view her PTSD symptoms are “better accounted for” by the diagnoses that he makes: depressive disorder, and somatic symptom disorder. However, he added:

…in my opinion, her future course and potential treatment of PTSD symptoms are relevant despite her not meeting full criteria for PTSD in my assessment.

[148]     The prognosis for substantial improvement is poor…

[218]     The evidence discloses that the plaintiff has suffered a very substantial non-pecuniary loss.  She is now only marginally able to continue with her former occupations, and passions in life, fitness training and barbering. Her physical and psychological injuries as outlined previously are substantial, and likely permanent to a large extent at least.  She has endured a great deal of pain and suffering, which will continue indefinitely. She has undergone two surgeries and a third surgery is likely, since it is recommended and the plaintiff says she plans to undergo it.

[219]     Her injuries and their consequences have quite dramatically affected her former lifestyle and her personality. She was previously very physically active. She participated in marathon runs and triathlons, operated a fitness business, and engaged in a number of sporting activities. She was independent and took pride in being able to support herself and her younger daughter, who continues to be a dependant. I referred earlier to the change in her personality noted by the witnesses. She is no longer outgoing, social, energetic and happy, as she was before.

[220]     Her homemaking capacity has been impacted. She testified that pre-accident she kept a tidy household. This is corroborated by Mr. MacDonald and her daughter. She no longer has the ability to maintain a tidy household. Now her house is messy.

[221]     On the other hand, she is far from completely debilitated, and there is a chance her condition will improve, with appropriate treatment.  Her pre-accident condition was not perfect, (in particular, she had symptomatic spinal degeneration, and headaches) and there was some risk that her conditions could have affected her detrimentally in future, as they had pre-accident.  They might have worsened.  …

[231]     Having regard to the case authorities I have referred to, I assess the plaintiff’s non-pecuniary damages in the amount of $170,000.


Martial Arts Student Waiver Held Not To Extend to Injuries Sustained in a Tournament

February 27th, 2019

Post originally published here on my other legal blog combatsportslaw.com 

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Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, allowing a lawsuit against a Brazilian Jiu Jitsu instructor to proceed for injuries a student sustained in a tournament.

In the recent case (Peters v. Soares) the Plaintiff was a student of the defendant’s BJJ academy.  The Plaintiff participated in a tournament where he sustained injury.  He sued for damages alleging his instructor was negligent in allowing him “to compete against a participant in a higher weight class and in a competition where stand up skills were required….(when the plaintiff) had no experience or training in stand up skills“.

As part of the plaintiff’s BJJ membership agreement he signed a waiver agreeing not to sue for injuries “in connection with my participating in the Classes“.  The Defendant argued that this waiver should be upheld and the lawsuit dismissed.  The Court disagreed noting that a waiver must be interpreted as only covering “matters specifically in the contemplation of the parties at the time the release was given“.  Using this test the court found the waiver for injuries in classes could not extent to a tournament.  In reaching this conclusion Madam Justice Matthews provided the following reasons:

[24]         Mr. Soares argues that because Mr. Peters’ claim of negligence is that the defendants knew he had no standing skills training, his claim arises from or is connected with his participation in the classes.

[25]         I do not accept that argument. Mr. Peters’ claim asserts a duty of care owed in relation to the competition, not the classes. While Mr. Peters alleges that Mr. Soares and Carlson Gracie knew his ability and training did not extend to standing skills and standing skills were required for the competition, it is not the training or lack of it that he asserts was negligent; it is inviting him to participate in the competition given what they knew about his training or lack of it. It is likely that at a trial of the negligence issue, Mr. Peters will seek to prove that the defendants’ had knowledge of his lack of standing skills training at least in part because of their interaction during the classes, but that is not the same thing as alleging negligence in relation to or arising from the classes.

[26]         In addition, there is no evidence that the competition was in Mr. Peters’ contemplation at the time he signed the membership agreement, and so there is no factual basis on which to find that Mr. Peters contemplated that the waiver provisions of the membership agreement would apply to the competition. The membership agreement was signed on September 23, 2015. Mr. Peters signed up for the competition on May 13 or 14, 2016, two weeks before he participated in it. There is no evidence that Mr. Peters was aware of or contemplated participating in the competition at the time he signed the membership agreement.

[27]         Mr. Soares has not led evidence that he had the competition in contemplation when Mr. Peters signed the membership agreement. In his affidavit, Mr. Soares described the waiver terms of the membership agreement. All of Mr. Soares’ evidence about the membership agreement and its waiver terms specifically reference the classes. He does not reference the competition at all when deposing about the waiver terms of the membership agreement.

[28]         I find that neither Mr. Peters nor Mr. Soares had the competition in contemplation when Mr. Peters signed the membership agreement.

[29]         The first Tercon inquiry is answered in the negative. The membership agreement waiver does not relate to Mr. Peters’ claim regarding the injuries he allegedly sustained in the competition and so cannot exclude Mr. Peters’ claim.


$160,000 Non-Pecuniary Assessment for Brain Injury and Chronic Pain

February 25th, 2019

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a mild traumatic brain injury and chronic pain sustained in a BC vehicle collision.

In today’s case (Ranahan v. Oceguera) the Plaintiff was involved in a 2013 rear end collision.  Although faut was not formally admitted the Court found the Defendant fully liable for the crash.  The Plaintiff suffered chronic injuries from the collision and in assessing non-pecuniary damages at $160,000 Mr. Justice Mayer provided the following reasons:

[144]     I find that as a result of the accident, Ms. Ranahan has sustained mild traumatic brain injury and soft tissue injuries to her spine, which has developed into chronic neck pain, upper back pain, post-concussion syndrome, cognitive problems with memory and focus, imbalance, tiredness, fatigue, tinnitus, eye strain, sleep disturbance and chronic headaches. I also accept that the imbalance caused by her accident resulted in a further injury, the left ankle dislocation with a chip fracture, while coaching a soccer game.

[145]      I also find that Ms. Ranahan suffers from ongoing mood symptoms including irritability, moodiness a reduction in patience and positivity. She is experiencing on-going difficulties dealing with stress. Although Ms. Ranahan admits that prior to the accident she was under significant stress as a result of her husband’s health issues, family and work responsibilities she was managing these stresses and was fully functioning at work and at home and was able to participate in a number of sports and social activities.  

[146]      I find, based on the totality of the lay and expert evidence, that there are no genuine issues of causation in this case. I find that but for the accident Ms. Ranahan would not be suffering from her current physical and psychological/cognitive symptoms…

[157]     I find that, as a result of the accident, Ms. Ranahan experienced and continues to experience physical and emotional pain, suffering and limitation. Relevant facts have been set out earlier in my reasons and there is no need to repeat them.   

[158]     The impacts have interfered with her family and business life but as a result of her stoicism these impacts have been managed to a certain extent. In addition, her injuries have significantly impacted her recreational and social pursuits but she has not been completely unable to participate in some of these activities.  

[159]     I find that there has been some improvement in some of Ms. Ranahan’s symptoms. What is not clear is whether there will be any further improvement. There appears to be a belief amongst some of the medical experts, including Drs. Chow, Johnston and Boyle, that further assessment and treatment may result in improvement. The prognosis of Dr. Chow and Dr. Johnston is guarded.

[160]     Many of the cases relied upon by Ms. Ranahan occupy the higher end of the spectrum for non-pecuniary damages for similar injuries. The cases relied upon by ICBC are in my view at the lower range and the damages awarded in those cases are not sufficient to address the pain, suffering, loss of enjoyment of life and loss of amenities suffered by Ms. Ranahan. 

[161]     Having reviewed the cases provided by the parties I assess Ms. Ranahan’s non-pecuniary damages at $160,000.  


ICBC’s “Meat Chart” Crashes In the BC Supreme Court

February 14th, 2019

Update February 25, 2019 – The below paragraph 71 was edited in revised reasons for judgement published today and now reads as follows:

[71]         This is the type of case that was ripe for settlement, as demonstrated by the small difference between the plaintiff’s offer and the award made. Were it in my power to award more in costs in favour of the plaintiff I would have done so. This case did not need to occupy the court’s time at the expense to the taxpayer. It should have been settled.

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Earlier this year ICBC instructed its staff to ignore the law when valuing cases and instead make offers based on an internal injury ‘meat chart’.  The result is cases not settling and going to trial.

The first wave of these has now hit the courts and the judiciary seems none too impressed by ICBC and their ‘institutional’ tactics.

In reasons for judgment released today (Tsai v. Murdoch) ICBC was harshly criticized.  The Plaintiff was injured and sought to settle her case.  ICBC declined and made a low settlement offer subject to their ‘meat chart’ guidelines. The plaintiff sensibly rejected the offer and went to trial where damages were assessed under the law and resulted in an award greater than what she was prepared to settle for.

The Court went on to award the plaintiff double costs for ICBC’s tactics and criticized their new approach.  In doing so Madam Justice Sharma provided the following reasons:

[71]         This is the type of case that was ripe for settlement, as demonstrated by the small difference between the plaintiff’s offer and the award made. I was informed the defendant had made a settlement offer, but withdrew it for “institutional” reasons. Whatever “institutional” reasons are they do not protect in any way a litigant from bearing the consequences of its choices in the litigation.  Were it in my power to award more in costs in favour of the plaintiff I would have done so. This case did not need to occupy the court’s time at the expense to the taxpayer. It should have been settled.


$125,000 Non-Pecuniary Assessment for “Complex” Psychological Injuries With Pain

February 13th, 2019

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, assessing damages for the victim of a hit and run collision.

In today’s case (Crozier v. ICBC) the Plaintiff was injured in a 2013 collision caused by an unidentified motorist.  ICBC admitted statutory liability for the crash.  The Plaintiff suffered both physical and psychiatric injuries which were partially disabling and had a poor prognosis for full recovery.  In assessing non-pecuniary damages at $125,000 Mr. Justice Saunders provided the following reasons:

[99]         The physical and psychological injuries Ms. Eros suffered include pain in the neck, back, shoulders, rib and chest; headache; dizziness and nausea; post-traumatic stress disorder, together with symptoms of depression and anxiety; fatigue, and problems with concentration and memory, either as a result of a mild traumatic brain injury (not confirmed through neuropsychological testing), or a combination of the physical and psychological/psychiatric injuries. Ms. Eros suffers from some residual headache and rib and chest pain. Fatigue remains a concern. She has significant chronic pain in the thoracic spine, and her psychological injuries continue. She is significantly disabled from working fully in her chosen field of massage therapy, and from engaging in physical labour of the type she did with SCRD. Her physical activity is limited. She can only do light housework.

[100]     I also consider the following factors as particularly influential in the damages award. Ms. Eros avoids driving where possible. She is not the joyful, outgoing person she used to be. Her self-identity as a strong and fearless person is gone. She lost the chance of pursuing her relationship with Mr. Johnson. Her relationship with her mother deteriorated after the accident. She is more socially isolated.

[101]     The defendant’s suggested range of $60,000 to $80,000 for Ms. Eros’ non-pecuniary damages, and the case law submitted in support of an assessment in that range, are premised on the substantial improvement of Ms. Eros’ physical injuries within 12 months of the accident, and of the psychological injuries within 18 months. The defendant’s submissions do not come close to acknowledging the devastating psychological effects of the accident, the continuing functional limitations imposed by the plaintiff’s pain, and the complex interrelationship of the pain condition and the post-traumatic stress disorder…

[104]     I find an appropriate award of non-pecuniary damages is $125,000.


$85,000 Non-Pecuniary Assessment For Soft Tissue Injuries with Persistent Flare Ups

January 31st, 2019

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, assessing damages for persistent soft tissue injuries with frequent flare ups.

In today’s case (Palmer v. Ansari-Hamedani) the Plaintiff was involved in two collisions with the Defendants accepting fault.  The first crash was relatively minor with injuries well on their way to recovery by the time of the second crash.  The second collision caused persistent soft tissue injuries which continued to the time of trial and often flared up with various activities.  In assessing non-pecuniary damages at $85,000 Madam Justice Morellato provided the following reasons:

[86]         In conclusion, I find that Ms. Palmer’s suffered from the following symptoms in the months following the Second Accident: mental “fogginess”; nausea, dizziness, balance issues; ringing in ears, a bump on back of the head, bruising in swelling in the forearm and overwhelming nerve tenderness in the forearm.  I find that these symptoms had substantially resolved by the time she returned to full-time work at Dr. McDougall’s office in February of 2013.  Other related symptoms, however, persisted as described below.

[87]         Ms. Palmer’s soft tissue injuries to her neck and back have persisted for some time; however, I find that by the time she saw Dr. Pascoe in May of 2017, Ms. Palmer had substantially recovered from these injuries.  However, I find that she continues to suffer “flare-ups” as recognized by Dr. Pascoe in her August 2017 reporting letter.  Further, as noted above, I also accept that the flare-ups in her neck and back cause occasional headaches, some of which are migraine headaches but these are less frequent.

[88]         The evidence before me has not established, on a balance of probabilities, that Ms. Palmer suffers cognitive deficits or permanent brain damage from her Second Accident.  Nor am I satisfied that her Second Accident affected or compromised her ability to retrain or attend to further educational pursuits.

[89]         I find that while the injury to Ms. Palmer’s right shoulder and arm is not symptomatic on a daily basis, the injury has not yet resolved and continues to cause her pain and discomfort.  She suffers pain and numbness in her arm when her arm is tired or she holds her forearm and hand in flexed or extended positions.  I am also satisfied on the evidence before me that Ms. Palmer suffers flare-ups of pain in her shoulder area.

[94]         I have also considered the cases counsel have drawn my attention to as well as the related case law: see e.g.  Cleeve v. Gregerson et al, 2007 BCSC 1112 [Cleeve]; Senger v. Graham, 2018 BCSC 257; Knight v. Belton, 2010 BCSC 1305.  In this light, and having regard to the specific circumstance before me, I am of the view that an award of $85,000 is fair and reasonable.


$85,000 Non-Pecuniary Assessment For Chronic Neck Pain and Headaches

January 28th, 2019

Reasons for judgement were published this week by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic neck pain and headaches following two vehicle collisions.

In the recent cast (McCully v. Moss) the Plaintiff was involved in two separate collisions with the Defendants accepting fault for both.  The collisions caused a neck injury with associated headaches which continued to the time of trial.  The symptoms were expected to continue and flare with heavier household and vocational duties.  In assessing non-pecuniary damages at $85,000 Madam Justice Devlin provided the following reasons:

[99]         Ms. McCully is 66 years-old and she suffers some limitation and restriction as a result of her persistent neck pain and headaches caused by the accidents. However, I do not agree that the injuries have a profound or life altering affect on Ms. McCully. I do find that she continues and will continue to experience some pain and discomfort and the medical experts confirm this. Although the medical evidence does not foreclose the possibility that she can increase her work hours or certain activity levels, I find that even where she does attempt these pre-accident activities, her injuries would increase her discomfort and pain.

[100]     While she is able to continue to work as an esthetician, she does experience discomfort if she exceeds working for a comfortable amount of time. Fortunately for her, her schedule is flexible and ultimately she is the one who will determine when she will work and for how long. While she may resort to the use of the TENS machine at the end of a long day to deal with the discomfort in her neck, she appears to be pleased to be able to continue to work for and service her clients.

[101]     I note that she has also returned to playing bridge a few times per week and has participated in a bridge tournament over the weekend albeit with the assistance of her pain medication. Participating in these bridge games is particularly important for Ms. McCully as it provides her an opportunity to engage socially. She continues to engage with her family and while she does not take her grandchildren to the pool she does babysit them at her residence. In a similar vein as Buckle, I note that Ms. McCully’s injuries restrict her from engaging in her domestic and work activities with the same energy and ability she had before the accidents. However, as I discussed earlier, despite having the chronic neck pain and headaches she continues to travel and has done so since shortly after the accidents.

[102]     In the following reasons, I will specifically address the parties’ arguments in relation to a segregated loss of housekeeping capacity damages. However, as I will re-state below, the impact of Ms. McCully’s injuries on her ability to perform household tasks informs my assessment of her non-pecuniary damages. I note also that she keeps a fairly large 2,900 sq. ft. house on a 12,000 sq. ft. lot. Overtime I find that Ms. McCully has been able to do some light housekeeping although she cannot do some of the more physically demanding tasks. Additionally, it is clear that she is more limited in performing yard maintenance.

[103]     There is no doubt that her neck pain and headaches have and will continue to have an impact on Ms. McCully in every aspect of her life to varying degrees. I am satisfied that Ms. McCully is entitled to compensation for the impact the injuries have had on her general well-being.

[104]     Having reviewed the cases provided by both parties, I assess Ms. McCully’s non-pecuniary damages at $85,000.