$35,000 Non-Pecuniary Damages for Moderate Soft Tissue Injuries

Reasons for judgment were released today by the BC Supreme Court awarding just over $40,000 in total damages as a result of injuries and loss sustained in a 2006 Richmond, BC Car Crash.
In today’s case (Lo v. Chow) the Plaintiff was injured when his vehicle was struck by the Defendants.  Liability (fault) was admitted by the Defendant leaving the court to decide quantum of damages (the value of the plaintiff’s losses and injuries).
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $35,000 Mr. Justice Sewell of the BC Supreme Court highlighted the following findings:

[19] As I have already indicated many of Mr. Lo’s symptoms resolved within a relatively short period after the accident.  His on-going complaints relate mainly to his lower back and are aggravated by heavy exertion at work.  Mr. Lo did not give any evidence about curtailment of recreational activity which he has suffered as a result of the accident.

[20] I conclude that Mr. Lo suffered a mild to moderate soft-tissue injury as a result of the accident.  On the evidence before me, and in particular given the duration of his symptoms, I conclude that he will continue to be symptomatic for the foreseeable future.  At the same time, the intensity of his symptoms is not severe and they do not appear to be in any way debilitating.  My impression of Mr. Lo is that he has coped well with his pain.  Nevertheless, he has continued to experience pain for over 3 years and, as I indicated above, that pain is likely to continue indefinitely.  In all the circumstances I award Mr. Lo non-pecuniary damages for pain and suffering of $35,000.00.

In addition to the discussion addressing damages for pain and suffering this case is worth reviewing for some of the ways ICBC defence lawyers use entries contained in clinical records to try and impeach a Plaintiff at trial.  This type of impeachment with ‘prior inconsistent statements‘ is a common method used in personal injury claims.

In this case the defence lawyer argued that the Plaintiff’s evidence was inconsistent with statements recorded in certain documents.   Mr. Justice Sewell put little weight in this argument and in rejecting it noted the following:

[13] In his submissions counsel for the defendant submitted that Mr. Lo’s credibility was in issue and that I should be very sceptical about the evidence which he gave as to his condition.  Having observed Mr. Lo in the witness box and taking into consideration the whole of the evidence I find that Mr. Lo was a credible witness and that I should accept his evidence as credible.  He did not seem to overstate his symptoms and gave forthright answers to questions even when the answers did not advance his case.

[14] Defence counsel’s criticisms of Mr. Lo’s credibility are centered on two particular documents.  The first is a document described as a Discharge Report prepared by Mr. Troy Chen, a personal trainer who supervised an exercise program to Mr. Lo between August 29, 2006 and October 12, 2006.  Counsel submitted that Mr. Lo’s evidence that he continues to have difficulty and pain when called upon to do heavy work cannot be reconciled with some of the comments attributed to him in the Discharge Report.  In particular, counsel points to the following passage on page 2 of the Discharge Report dealing with client activities:

“Mr. Lo indicated the following:

Working fulltime as a packager for BEPC Apparel.  No time for any sporting or recreational activities.  On October 12, 2006, Mr. Lo indicated that he was now able to perform all job-related duties without assistance.”

[15] Counsel submits that this statement is inconsistent with Mr. Lo’s evidence that while he was employed at BEPC he required assistance in lifting heavy objects and packages.  He therefore invited me to make adverse findings of credibility against Mr. Lo.

[16] I do not think that Mr. Lo’s credibility is in any serious way damaged by the contents of the Discharge Report.  Firstly, Mr. Chen testified that he has absolutely no recollection of the matters recorded in the Report.  Accordingly, the only evidence that I have from him is in the form of past recollection recorded in the Discharge Report.  Mr. Lo speaks primarily in the Cantonese dialect of the Chinese language.  Mr. Chen speaks English and Mandarin.  He testified that he would have spoken to Mr. Lo through an interpreter but was unable to identify who that interpreter was or the circumstances in which he made notes of Mr. Lo’s comments.  I also note that in the portion of the Discharge Report immediately below client activities Mr. Chen noted that Mr. Lo continued to suffer constant discomfort in his lower back and that exertion tended to elicit pain which may linger for several days.  Mr. Lo also reported to Mr. Chen that lifting heavy objects elicited pain in his right pectoral area.

[17] The other document which counsel submitted brings Mr. Lo’s credibility into question is a WorkSafe B.C. claim filed by Mr. Lo in June 2007 with respect to a work-related injury.  On June 8, 2007 Mr. Lo lifted 30 boxes weighing at least 60 pounds each.  Mr. Lo at that time reported back pain and made a claim for wage loss compensation to WorkSafe B.C.  In the course of investigating Mr. Lo’s claim WorkSafe B.C. required various forms to be completed.  In one of the forms which was completed on behalf of Mr. Lo, in English, he reported that there was no previous condition prior to the injury.  I, again, do not find that the contents of these documents cause me to form an unfavourable impression about Mr. Lo’s credibility.  The documents, as I indicated above, are prepared in the English language and were prepared on Mr. Lo’s behalf by an employee of BEPC.  Mr. Lo testified that the contents of the document were not read to him and he understood that they were an application for benefits.  In all of the circumstances, I do not think that Mr. Lo intended to mislead or make false statements in his application to WorkSafe B.C., nor do I think that the contents of these documents are necessarily inconsistent with Mr. Lo’s symptoms as he reported them to his physicians and testified to at trial.

icbc injury cases, ICBC Injury Claims Database, Lo v. Chow, prior inconsistent statements, Richmond ICBC Claims Lawyer, soft tissue injury cases, Whiplash Claims

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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