Mechanical Back Pain and Diminished Capacity For Stay at Home Parents Discussed

Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, discussing non-pecuniary damages for mechanical back pain and further discussing awards for ‘diminished earning capacity‘ for stay at home parents who intend to return to the workforce.
In this week’s case (Bergman v. Standen) the Plaintiff was involved in a 2006 motor vehicle collision.  Fault for the crash was admitted by the other motorist.  The Plaintiff was 27 years old at the time of the crash and did not have “an established record of employment because of the conscious choice she and her husband made to have and raise their children to school age with the benefit of a stay-at-home-mother”.
The Plaintiff sustained injuries in the crash which included soft tissue damage and mechanical back pain.  Some of these symptoms were expected to be permanent although there was room for improvement with further therapy.  Mr. Justice Barrow assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $75,000.  In arriving at this figure the Court provided the following reasons:
[63] To summarize, Ms. Bergman was a 27-year-old mother of two young children, who suffered a Grade II whiplash injury to her neck and upper back, which resolved after several months and left her with no recurrent symptoms. She also suffered contusions, bruises to her face and chest, and a sore wrist, which resolved without ongoing difficulties shortly after the accident. Finally, and most significantly, she suffered a mechanical injury to her lower back that, I am satisfied, caused her significant pain and discomfort in the four and a half years since the accident. I am not persuaded that the discomfort is as significant as Ms. Bergman describes it, but it is nevertheless significant. I am satisfied that her lower back will remain symptomatic indefinitely. If, however, she follows the advice of Dr. Travlos and others, and commits to a program of physical conditioning and determines to work through the limitations that her low back may present, rather than dwelling on them, the degree to which that injury will affect her life in the future will moderate. In light of this, I am satisfied that an appropriate award for non-pecuniary damages is $77,500. This amount includes $2,500 for past loss of housekeeping capacity for reasons I will explain below.
This case is also worth reviewing for the Court’s discussion of diminished earning capacity (future wage loss) awards for Plaintiffs who are out of the workforce at the time of their injuries.   As previously discussed there is nothing preventing such plaintiffs from being awarded damages for future wage loss given the right circumstances.  In assessing the Plaintiff’s loss at $65,000 Mr. Justice Barrow provided the following useful reasons:
[80] Ms. Bergman does not have an established record of employment because of the conscious choice she and her husband made to have and raise their children to school age with the benefit of a stay-at-home mother. I accept that Ms. Bergman planned to and will return to work when her youngest child reached school age. I accept that the sort of work she is destined to do will likely involve an emphasis on physical as opposed to mental exertion. There is a mill in Lavington that Ms. Bergman thought about applying to. She impresses me as the sort of person who would find work of that nature rewarding and challenging. It is with a view to those real and substantial possibilities that the question of her indefinite, albeit moderating disability, needs to be assessed….
[84] I recognize that Dr. Coghlan, in his September 21, 2009 report, concluded that he would “not restrict her activity level in terms of jobs on the basis of today’s findings”. I am not sure that the opinions of the physiatrists are in conflict. Whether they are or not, I am satisfied that Ms. Bergman has established an impairment of her capital asset, being her ability to earn an income in the future. Valuing that loss is necessarily an imprecise exercise. Lacking any better measure, I consider that an award equivalent to between one and two years of Ms. Bergman’s likely future annual income to be reasonable. I fix her loss of future earning capacity at $65,000.