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$80,000 Non-Pecuniary Damages for Chronic Pain and PTSD

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Wage Loss, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court awarding damages for injuries and loss as a result of a 2007 BC Car Crash to a previously disabled Plaintiff.
In today’s case (Viner-Smith v. Kiing) the Plaintiff was previously disabled with depression and other medical issues.  In 2007 he was involved in a rear-end car crash.  The Crash caused various physical injuries and exacerbated his pre-existing depression.
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $80,000 Mr. Justice Holmes summarized the accident related injuries as follows:

[51] The plaintiff now suffers from the complex interaction of a combination of chronic pain, major depressive disorder, and PTSD.  The chronic pain syndrome and PTSD are a result of the motor vehicle accident.  A depressive disorder was present before the accident but in my view was increased or exacerbated from the effect of the accident.   The combination of conditions can have the effect that a worsening of the symptoms of any one may cause another to worsen.

[52] The combination of these disorders is notoriously difficult to treat pharmacologically.  Dr. Passey’s prognosis for the plaintiff “…remains poor for a full recovery and I am pessimistic about any future significant improvements” and “even with further treatment it is most likely that he will have a restricted lifestyle, diminished ability to enjoy life and a restricted capacity for any type of competitive employability for the foreseeable future.”

[53] The plaintiff therefore sustained soft tissue injury in the accident and he suffered significantly in the immediate post accident period with diminishing pain over three or four months.  He also suffered an increase or exacerbation of the psychological symptoms of anxiety, depression and agoraphobia which he had experienced pre-accident but to a lesser degree.

[54] The plaintiff’s pre-accident depression involved passive thoughts of suicide but post accident they escalated to active ideation, with the plaintiff researching methods to commit suicide although not following through because of the effect he believed it would have on his family.  The symptoms of agoraphobia in not leaving his home, answering the phone, getting the mail, and becoming isolated and reclusive, appear to have increased from sporadic and partial pre-accident to the plaintiff tending toward being totally reclusive and isolated after the accident.  The plaintiff even stopped filling out the monthly forms required to receive the funding for his son’s autism program and the government cut off payment.

[55] There is a good deal of evidence in the Odyssey documentation,  the records of Dr. Applegarth, and the testimony of his wife and friends,  that the plaintiffs depression and anxiety conditions existed prior to the accident.  The accident injuries ended the ability of the plaintiff to continue with the Odyssey program, however it may well not have succeeded in any event and the plaintiff was very unhappy with Odyssey before the accident and on the verge of withdrawing.

[56] The surgery for the CSDC has not occurred although available since 2004.  There was no firm commitment made to undergo the surgery and until it was successfully completed the plaintiff would not be returning to work.

[57] The plaintiff had not worked for 6 years at the time of the accident, including an unsuccessful attempt in 2003 doing only non-driving dispatch work.  Statistically persons who have not worked for two years are unlikely to return to employment.

[58] The health of the plaintiff prior to the motor vehicle accident was certainly impaired and he had significant disability.  The plaintiff was particularly vulnerable to both psychological and physical injury and both were caused by the defendant.  The plaintiff at the time of the accident was engaged in a tangible program directed toward an ultimate return to employment, however the result was problematical and uncertain.  There is no doubt however the effect of injuries the plaintiff sustained in the accident did interfere with his ability to rehabilitate himself and did constitute a set back to him.

[59] I agree with the assessment of Dr. Pullyblank that the prospects for the plaintiff’s return to work as a bus driver were low before the accident but lower still after.  The major effect of PTSD is that the plaintiff is eliminated from employment driving a bus or related occupations as that might trigger his fear of driving, accidents, injury and death.

[60] The plaintiff, because of the increased level of his depression and anxiety post accident, and his chronic pain and PTSD, has suffered a further impact on his already impaired quality of life.  The loss of hope of returning to employment as a bus driver, which he loved, and the lessening of his chances generally for remunerative employment, will impact his enjoyment of life…

[65] I assess the plaintiff’s non-pecuniary general damages for pain and suffering, loss of enjoyment of life and loss of amenities at $80,000.

In addition to assessment for pain and suffering for chronic pain and PTSD imposed on pre-existing depression this case is also worth reviewing for the court’s award of damages for wage loss for a previously disabled plaintiff.  In today’s case it was accepted that the accident caused no past wage loss and that given the Plaintiff’s pre-accident absence from the workforce it was ‘statistically unlikely’ that he would return to the work force even if the accident did not happen.  Despite this, Mr. Justice Holmes awarded the Plaintiff $50,000 for diminished earning capacity.  The court’s key discussion in coming to this figure is reproduced below:

[67]         The plaintiff does not seek past income loss and that is because there has been none.  He remains on disability insurance from his original employment.  Regardless of the motor vehicle accident it was problematic whether the plaintiff would have completed his rehabilitation program with Odyssey, pursued conditioning, lost weight, underwent successful surgery for his ear problem and hernia, and been successful in dealing with his depression, agoraphobia, gout and other health problems.

[68]         I am of the view that on the whole of the evidence there was only a minimal chance, absent the motor vehicle accident, that the plaintiff would have successfully achieved rehabilitation through the Odyssey program, successfully resolved his ear problem with surgery, and overcome his other medical and psychological conditions that would perhaps then have allowed him to attempt a return to his job as a bus driver after a six year absence.

[69]         On the evidence, I accept the injuries resulting from the motor vehicle accident give rise to only a minimal change from the plaintiff’s pre-accident earning capacity.  That change is that as a result of the effects of PTSD he will no longer be capable of employment as a bus driver or in any related work which will trigger his PTSD symptoms.

[70]         The reality however is that both prior to, and after, the motor vehicle accident the plaintiff presented to any prospective employer as a person:

·       who had not worked for six years

·       that was physically deconditioned

·       who could not sustain physical activity for prolonged periods

·       who suffered SCDS which triggered dizziness, balance problems, and headaches at random and on physical activity

·       suffered episodic bouts of depression and suicidal ideation

·       suffered diverse anxiety and agoraphobia feelings

·       and personally doubted his own ability to return to work.

[71]         The plaintiff pre-accident did not pursue any job opportunity although with training or further education had many options open to him, most of which still remain after the motor vehicle accident.

[72]         The PTSD has however further reduced the plaintiff’s pre accident ability to earn income and I assess the further diminution in the plaintiffs earning capacity attributable to the effect of the injury from the motor vehicle accident at $50,000.

Can a Plaintiff be Awarded Significant Funds for Future Wage Loss when their Pain and Suffering is Relatively Minor?

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, ICBC Whiplash Cases, Uncategorized.

The answer is yes and reasons for judgment were released today by the BC Supreme Court demonstrating this.
In today’s case (Sidhu v. Kiraly) the Plaintiff was awarded $35,000 for non-pecuniary damages for accident related soft tissue injuries.
Madam Justice Brown found that the Plaintiff suffered “soft tissue neck and back injuries and developed secondary muscle contraction occipital headaches”  These injuries largely improved over time and the Court found that “so long as (the Plaintiff) does not undertake any heavy labour, he has no significant complaints.  If he undertakes heavy work of any kind, his symptoms flare, he has neck, mid-back and shoulder pain as well as headeaches.”
Unfortunately for the Plaintiff, his own occupation at the time of the collision involved heavy labour and once he realized the permanent nature of his injuries he concluded he could not carry on in his occupation.  He retrained for a lighter career as a realtor.  The court found that this was reasonable given the accident related injuries and awarded the Plaintiff $350,000 for his diminished earning capacity.  In arriving at this assessment Madam Justice Brown engaged in the following analysis:

[25] Turning now to future loss of income or future loss of capacity, as I have indicated, I accept that the plaintiff will not be able to return to his work as a heavy duty mechanic and that he is permanently unable to undertake heavy labour of any kind.  This is a limitation on the plaintiff’s “ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured”, and a valid consideration in the determination of future income loss: Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 8 (S.C.).

[26] I also am of the view that his choice of real estate agent as a future career was a reasonable one in the circumstances.  In my view, given the plaintiff’s personality and his persistence, he is likely to succeed as a real estate agent.

[27] The plaintiff relies on the report of Gerry Taunton to calculate future income loss. Mr. Taunton calculates Mr. Sidhu’s without accident income as a mechanic to age 65 at $1,096,233 and his with accident income as a realtor at $561,552, a  difference of $534,681.

[28] The court must consider all of the evidence in assessing what makes a reasonable award for such a future loss.  Projections, calculations and formulas may be useful in determining what is fair and reasonable.  It is important for the courts to look at all relevant factors before fixing an amount.  Any award under this head of damages must be set off against appropriate contingencies.

[29] Having considered the assessment provided by Mr. Gerry Taunton and considering the contingencies in this case, positive and negative, in my view, an appropriate award for future loss of income or capacity is $350,000.  I do not accept the defendant’s submission that one year of income would be appropriate in this case.  As I have indicated, the plaintiff has been permanently disabled from his lifetime occupation as a heavy duty mechanic.  He has been forced to retrain.    There is some prospect that he will earn more than the median income of male realtors in British Columbia.  There is also the prospect that he will earn less.  I have assessed the amount of the award in this case as best I am able, considering all of the contingencies.

Can Past Wage Loss be Recovered in an ICBC Claim When You're Paid "Under the Table"?

Written by admin on . Posted in Civil Procedure, ICBC Wage Loss, Uncategorized.

When a person is injured through the fault of another in British Columbia and suffers a past wage loss from an “under the table” job can that past wage loss be recovered in a personal injury action? The answer is yes, however, it is much more difficult to do so than in cases where past income is accurately reported to Revenue Canada.
In a 1992 case from the BC Court of Appeal (Iannone v. Hoogenraad) the law was summarized as follows:
This plaintiff, like others in similar circumstances, had the burden of leading evidence of past accident wages losses.  That will be a difficult burden to discharge where there is no corroborating evidence such as income tax returns, but it is not an impossible burden to discharge.  Here the trial judge was satisfied on the evidence that the injuries sustained by the plaintiff prevented him from earning income which he would otherwise have earned.  The burden of proof was therefore discharged.  The loss was proven.  It is not, in my opinion, open to the defendant to avoid compensating for that loss on the ground that unreported income was taken into account in computing it.
Reasons for judgment were released today by the BC Supreme Court demonstrating the difficulty in succeeding in a past wage loss claim in these circumstances.
In today’s case (King v. Horth) the Plaintiff was injured in a 2006 Car Crash in Saanich, BC (greater Victoria).  The Plaintiff claimed damages for various losses including past loss of income.  At trial he asserted that “he would have been capable of earning greater income as a gardener had he not been injured in this accident”. This claim was largely rejected and paragraphs 25-26 of the decision demonstrate Mr. Justice Johnston’s skepticism of this claim for lost income where pre accident income was not reported to Revenue Canada:

[25]      A second concern respecting Mr. King’s credibility relates to his claim for loss of earning capacity arising out of this accident. This claim centers around his assertion that he would have been capable of earning greater income as a gardener had he not been injured in this accident. Prior to this accident the plaintiff did not record, in any fashion, the income he claims that he earned as a gardener, nor did he declare that income on his income tax returns. There is some evidence from a former employer that he had employed Mr. King as a gardener before the accident, however, that employer kept no record of the plaintiff’s work hours or his wages.

[26]      In a document he submitted to ICBC in February 2006, the plaintiff stated his occupation as a surveyor. He did not mention any work as a gardener. Mr. King testified that he felt it was advisable not to refer to his gardening income in his dealings with ICBC, at least in the beginning, because that income had been earned “under the table.”

In addition to making it more difficult to succeed in a past wage loss claim, a further dilemma that can arise in these types of cases are problems with Revenue Canada after trial.  Whether or not a past income award is made at trial, Revenue Canada can come after a Plaintiff for back taxes when these types of cases are advanced.

The reason for this is, to discharge the burden of proof, a Plaintiff usually needs to take the stand and testify under oath as to how much money he/she earned historically but failed to report to Revenue Canada.  Trial testimony is generally a public record and Revenue Canada can use this sworn evidence to come after Plaintiffs.  So, in summary, pay your taxes!

$75,000 Non-Pecuniary Damages for Moderate/Severe Post Traumatic Stess Disorder

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Wage Loss, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court awarding just over $320,000 in damages as a result of a serious BC Truck Accident.
In today’s case (Bonham v. Weir) the Plaintiff was driving a transport truck into Fort Nelson, BC, when another vehicle “crossed the centre line and collided head on with his truck. ”  The Plaintiff’s truck “burst into flames and (the Plaintiff) had to crawl out of the burning cab through a broken windshield.”
ICBC admitted fault on behalf of the driver of the other vehicle leaving the court to deal only with an assessment of damages.
Mr. Justice Smith found that while the Plaintiff’s physical injuries were relatively minor and healed within a month or two, the psychological impact of the crash had more lasting and debilitating effects.   In awarding $75,000 for the Plaintiff’s non-pecuniary damages, the court summarized his psychological injuries and their effect on his life as follows:

[25]         Mr. Bonham was involved in a horrific collision which could easily have been fatal for him, as it was for the other driver. Although his minor physical injuries healed quickly, he suffered and continues to suffer from post traumatic stress disorder. There is no doubt that his psychological complaints are genuine and that this condition has a very real and severe impact on his life. His personality has changed. He no longer interacts with family and friends as he used to. He has lost confidence in his abilities and lost interest in most of the things he formerly enjoyed. The psychological symptoms persist more than two years after the collision. Although the plaintiff can expect some improvement in his condition, some symptoms are likely to remain indefinitely.

[26]         Non-pecuniary damages must be assessed according to the impact of the injuries on the individual plaintiff. Decisions of the court in other cases are never completely comparable and provide no more than general guidance. However, recent decisions of this court that I have found particularly helpful in identifying a range of damages applicable to this care are:  Leung v. Foo, 2009 BCSC 747; Carpenter v. Whistler Air Services, 2004 BCSC 1510; and Latuszek v. Bell Air Taxi, 2009 BCSC 798.

[27]         Taking into account the differences and similarities between those cases and this one and, most importantly, the evidence of the impact of this plaintiff’s injuries on his life, I find $75,000 to be an appropriate award for non-pecuniary damages.

This case is also worth reviewing for the courts awards of Loss of Future Earning Capacity.
In this case the Plaintiff’s past wage loss was modest up to the time of trial totalling neat $6,000. Notwithstanding this minimal past wage loss the Court awarded significant damages of $225,000 for loss of future earning capacity because of the ongoing impact of the Plaintiff’s PTSD on his ability to work in his own occupation.  Paragraphs 28-42 of this case are worth reviewing for anyone interested in the law of damages in BC relating to future wage loss.

More from BC Supreme Court on LVI Crashes, Net Past Income Loss Awards

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, ICBC Whiplash Cases, Uncategorized.

(Note: the case discussed in this post was overturned by the BCCA addressing the issue of tax consequences in ICBC past income loss awards.)
In reasons for judgement published today by the BC Supreme Court (Laxdal v. Robbins) Madam Justice Gerow discussed two interesting issues that often come up in ICBC Claims.
The first is the “LVI Defence“.  In today’s case the Plaintiff was injured in a 2006 car crash in Nanaimo, BC.  This collision appears to fit ICBC’s LVI criteria in that the Plaintiff’ vehicle suffered minimal damage and this was stressed by the defence at trial.  In finding that the Plaintiff indeed suffered injury in this crash despite the rather insignificant amount of vehicle damage Madam Justice Gerow had this very practical take on the evidence presented:

[17] Although the severity of the accident is a factor that should be taken into consideration when determining whether Ms. Laxdal suffered injuries in the motor vehicle accident and the extent of those injuries, it is not determinative of either issue. Rather, the whole of the evidence must be considered in determining those issues.

[18] In this case, the uncontradicted evidence of both Ms. Laxdal and Dr. Roy, her family doctor, is that Ms. Laxdal suffered a soft tissue injury in the accident. As a result, I have concluded that Ms. Laxdal’s injuries were caused by the motor vehicle accident of September 11, 2006.

The court went on to award $15,000 for the Plaintiff’s pain and suffering for “mild to moderate soft tissue injury in her neck and back with some pain radiating into her shoulders.  Her injuries had mostly recovered…approximately 8.5 months after the accident, and it is unlikely that there will be any significant residual symptoms as a result of the accident“.

The second issue dealt with by the court worth noting was the award for past loss of income and the proper calculation of “net income loss”.

There is a debate amongst lawyers in the Personal Injury Bar with respect to the proper calculation of “net income loss” when the amount of past wage loss in a BC Vehicle Crash tort claim for any given year is so small that the figure would be tax exempt but when added up with the other income earned by the Plaintiff the gross figure would be taxable.  The answer to this question is important as it effects the amount that can be awarded for past wage loss in a BC Car Crash tort claim due to s. 98 of the Insurnance (Vehicle) Act.

In today’s case, Madam Justice Gerow decided as follows:

“In my view, the authorities support the conclusion that where the gross award is at or below the amount exempt from taxation, there would be no tax payable so that the net past income loss would be the same as the gross past income loss….Accordingly there will be no deduction for income tax as the amount of past wage loss is below the personal exemption.”

This is a great result for BC Plaintiff’s injured in car crashes who suffer a modest past wage loss as it permits the gross amount to be recovered so long as the award fall below the personal income tax exemption for any given calendar year.  I imagine ICBC is not as pleased as Plaintiffs are with this interpretation and perhaps this issue will go up to the Court of Appeal for consideration.  If it does I will be sure to write about the result.

Can Injuries in an ICBC Claim be Worth Less for Failing to Lose Weight?

Written by admin on . Posted in ICBC Knee Injury Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Wage Loss, Uncategorized.

The short answer is yes.  In BC, if a Defendant who negligently injures you can prove that the extent of your injuries would have been less if you took reasonable steps to ‘mitigate’ your loss then the value of your damages can be reduced accordingly.  This principle of law is called ‘failure to mitigate’.
Failure to mitigate can include failing to follow a reasonable treatment or rehabilitation program such as a weight loss program.  Reasons for judgment were released today by the BC Supreme Court demonstrating the ‘failure to mitigate’ principle in action.
In today’s case (Rindero v. Nicholson) the Plaintiff was injured when seated as a rear-seat passenger in a pick up truck which struck a vehicle that ran a red light.  Fault was admitted leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s injuries and loss). In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $36,000 Mr. Justice Meiklem found that the Plaintiff suffered from Patellofemoral pain (knee pain), a slight exacerbation of pre-existing post traumatic stress disorder and recovered soft tissue injuries to the neck and shoulders with accompanying headaches.
The Court found that the Plaintiff’s knee injury was the most serious of the injuries and summarized its effect on the Plaintiff’s life as follows:
The plaintiff’s knee injury is probably chronic and not likely to fully resolve. It is troublesome and painful when he stands for long periods, sits for long periods, or overextends any vigorous physical activity….The most significant limiting effect on his activities that he mentioned in relation to his knee pain was restriction on his style of big game hunting, and fishing. He hunts only from roads as opposed to hiking off into the bush as he sometimes did, and he avoids fishing areas that involve difficult access.
In arriving at the $36,000 figure the court reduced the damages by 20% for the plaintiff’s failure to mitigate, specifically the failure to lose weight which would have reduced the extent of the knee pain.  Mr. Justice Meiklem summarized and applied the law of failure to mitigate as follows:

[30] The defendants argue that the plaintiff’s failure to significantly reduce his weight has contributed to the severity and persistence of his knee pain and amounts to a failure to mitigate, which should reduce his award. There can be no doubt that the plaintiff would suffer less with knee pain that is increased with physical activity if he lost weight. The medical evidence confirms this elementary physical principle. At an estimated 265 pounds at trial he was about 25 pounds heavier than he was when examined by Dr. McKenzie in July 2008. I note that in July 2008 his left knee pain, which is his primary injury, was less prominent than his right knee pain. I appreciate that sore knees would probably make it more difficult to engage in the vigorous exercise that is usually part of a weight loss program, but the plaintiff has demonstrated that he can lose a considerable amount of weight when he changes diet and lifestyle, and that his left knee pain was lessened when he weighed less.

[31] I note that the plaintiff told Dr. McKenzie that he experienced knee pain when riding his mountain bike more than an hour as soon after the accident as June 2005, which, apart from showing that his knee injury was not very disabling,  shows that exercise is not out of the question for him. I find that the defendant has established a failure on the part of the plaintiff to mitigate his damages.

[32] The extent to which damages should be reduced is obviously not amenable to any precise calculation on these facts, but I note that in the Collyer case cited by the plaintiff, an award of $80,000 was reduced by $10,000 for a comparable failure. In the Crichton case cited by the defendants a 30% discount was applied for failure to participate in group psychotherapy sessions recommended by a psychiatrist and a family doctor, which would address an anxiety disorder and thereby assist in dealing with chronic pain. I find that a discount of 20% to the award I would otherwise make to account for failure to mitigate is appropriate.

On another note, this case contains a useful discussion of plaintiff credibility and some of the factors courts look at when gauging this.  Additionally, this case contains a very useful discussion of the law of ‘diminished earning capacity’ (future wage loss) at paragraphs 35-39.

$104,500 Non-Pecuniary Damages Awarded for TOS

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases, ICBC Wage Loss, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry (Hooper v. Nair) awarding damages for a 2003 motor vehicle collision.
The Plaintiff was struck while walking lawfully in a marked crosswalk in Burnaby, BC.  She suffered various injuries including Thoracic Outlet Syndrome (TOS).
Madam Justice Russell awarded the Plaintiff $104,500 for her non-pecuniary damages.  In valuing the plaintiffs pain and suffering the Court summarized the Plaintiff’s injuries and their effects on her life as follows:

[50] There are a number of factors that affect the plaintiff’s entitlement to non-pecuniary damages.  With respect to the duration of the pain, the plaintiff’s pain has become chronic in nature.  She continues to experience pain particularly in her neck, left shoulder and arm nearly six years since the onset of symptoms. The chronic nature of her pain means that she will have to deal with and manage the pain from her underlying TOS for the foreseeable future.  She has tried many different modalities of treatment with limited success.  There is some improvement but the pain is still present.  Further, the injuries led to the development of sleeping problems which cause the plaintiff to feel tired in the morning.   She can hope for some improvement over time with a regular exercise programme.  But overall, the prognosis for a full recovery is unclear and it appears that she will continue to be affected by the injuries indefinitely and will likely have to live, at a minimum, with background pain.

[51] The plaintiff’s lifestyle has been adversely affected in a number of ways.  She is determined to resume her jogging programme and to re-enter the Sun Run with her husband.  However, her early attempts to run resulted in a flare-up of neck and back pain.  Drs. Travlos and Salvian suggest that jogging may not be an activity she can do.  Dr. Travlos states she will have to pre-medicate for any activity which causes an exacerbation of her back pain.  Certainly golfing, an activity she enjoyed, will not be an activity she can participate in without pain.

[52] Both doctors also point out that the plaintiff is susceptible to further episodes of TOS should she have any increased neck injury or strain.  Dr. Salvian says that such increased neck strain could be caused by something as simple as “sleeping in a poor position or driving for long periods”.

[53] The plaintiff’s professional life was impacted by the Accident.  She has been able to cope fairly well with the duties of her job by minimizing the use of her left arm.  Luckily, she is right hand dominant.  But her evidence was clear that she maintained the earnings she had only by pushing through the pain and carrying on as best she could.  She gave evidence of struggling to carry on, taking her work home because she could not sit any longer in her office, and feeling tired and overwhelmed.  Because of her pain and fatigue, she believes she could not “court” clients as effectively at a time in her career when she was in a start-up mode and needed to do so.

[54] The Accident also caused emotional difficulties for the plaintiff which were no doubt situational and due to the chronic pain and resulting fatigue.  Fortunately, these problems have not continued and she appears to be coping well at this point.

[55] The plaintiff’s relationship with her husband was in some difficulty due to his business problems and their financial crises prior to the Accident but had improved by October 2005.  Mr. Hooper stated that her sleep difficulties meant she would often leave the marital bed and their relationship was negatively affected.  However, the plaintiff’s evidence about the effect of her injuries on her marital relations with her husband was not as clear.  But I accept his evidence that the plaintiff was irritable, fatigued and distant after the Accident and that her frustration with the slow progress of her recovery affected the happiness of the household.

[56] At the time of the Accident in December 2003, the plaintiff’s son was six years old.  She enjoyed skating with him.  She was not able to take part in active sports with him after the Accident and even cuddling him was painful for her for some time following the Accident.

[57] The plaintiff faced the difficulty of juggling many activities in her busy life:  she had a job which required time and concentration and some extra activities she needed to do as part of her marketing, she was the chief breadwinner for the family, and she had a young son at home and a house to care for.  Even before the Accident she was very busy but with the overlay of pain caused by the Accident, the plaintiff could not keep up her usual standard of housekeeping.  She relied on her older son and her husband to help but this was not always successful and caused friction in the family.  Vacuuming caused her intense pain as did reaching up to dust or clean above her shoulder.  This remains the case today.  She cannot vacuum, wash windows, or dust high corners.

[58] While Dr. Travlos suggests she use Noritryptiline to pre-medicate if she wants to do housework which would otherwise cause her pain, this is not always a practical solution and I accept that her inability to do housework has an impact on her life.

In addition to this case’s value as a precedent in Thoracic Outlet Syndrome cases the court discusses the thin skull and crumbling skull legal principles at paragraphs 59-66 and contains a very useful discussion of claims for past wage loss for commissioned sales-persons who are injured but not totally disabled as a result of accident related injuries.

More on ICBC Injury Claims, Past Wage Loss and Tax Consequences

Written by admin on . Posted in ICBC Wage Loss, Uncategorized.

When advancing a personal injury claim against another as a result of a BC Car Crash claims for past wage loss are limited to wage loss less income tax.  This is so because of s. 98 of the Insurance (Vehicle) Act which reads as follows:
Despite any other enactment or rule of law but subject to this Part, a person who suffers a loss of income as a result of an accident or, if deceased, his or her personal representative, is entitled to recover from designated defendants, as damages for the income loss suffered after the accident and before the first day of trial of any action brought in relation to it, not more than the net income loss that the person suffered in that period as a result of the accident.
Over the years there was some uncertainty as to how this section of the Insurance (Vehicle) Act operated with respect to claims for past wage loss that extended for multiple years.  For example, if a person suffered 2 years of wage loss of $25,000 per year how would tax be calculated?  Would it be the tax payable on $25,000 per year or would it be the tax payable on the whole $50,000 as if it was earned on the date of trial or settlement?  In March, the BC Court of Appeal released reasons for judgement clarifying this section stating in essence that if income loss can be attributed to any given year then the taxes payable on that income for that year should be deducted.
There is one scenario, however, that has not been clarified by the BC Court of Appeal and that is what income taxes are payable when the amount of past wage loss for any given year is so small that the figure would be tax exempt but when added up with the other income earned by the Plaintiff the gross figure would be taxable?
Reasons for judgement were released this week by the BC Supreme Court dealing with this issue.  In this week’s case (Laxdal v. Robbins) the Plaintiff was involved in a 2006 BC Car Crash.  Madam Justice Gerow found that the Plaintiff suffered a past wage loss of $3,306.24 in 2006.  ICBC’s lawyers argued that this amount should be further reduced to reflect the income taxes payable when adding this figure to the Plaintiff’s total 2006 earnings.  In rejecting this argument the Court held as follows:
“In my view, the authorities support the conclusion that where the gross award is at or below the amount exempt from taxation, there would be no tax payable so that the net past income loss would be the same as the gross past income loss….Accordingly there will be no deduction for income tax as the amount of past wage loss is below the personal exemption.”
This is a great result for BC Plaintiff’s injured in car crashes who suffer a modest past wage loss as it permits the gross amount to be recovered so long as the award fall below the personal income tax exemption for any given calendar year.  I imagine ICBC is not as pleased as Plaintiff’s are with this interpretation and perhaps this issue will go up to the Court of Appeal for consideration.  If it does I will be sure to write about the result.

BC Court of Appeal Discusses Future Wage Loss in Personal Injury Claims

Written by admin on . Posted in ICBC Wage Loss, Uncategorized. 48 Comments on BC Court of Appeal Discusses Future Wage Loss in Personal Injury Claims

Reasons for judgement were released today by the BC Court of Appeal increasing the award a Plaintiff received at trial for Diminished Earning Capacity (future wage loss).
In today’s case (Pett v. Pett) the Plaintiff sustained serious injuries in a 2003 BC motor vehicle collision.  The findings of fact made by the trial judge giving rise to the appeal were as follows:
[1] The appellant, Jacob Pett, now aged 23, was injured in a motor vehicle accident that occurred on a logging road near Rock Creek, British Columbia, on November 15, 2003.  He was a passenger in a pick-up truck being driven by his father, the defendant, David Pett.  The driver lost control and the vehicle slid off the road and rolled over a number of times before coming to rest in a farm field.  The appellant initially suffered from a concussion and an injured shoulder, but recovered satisfactorily from these injuries.  He complained of a very painful back shortly after the accident.  This back injury persists and continued to cause him difficulty at the time of trial…
[5] The judge found that the back injury had a negative impact on his recreational activities and that his enjoyment of those activities had been and will be diminished because of his back pain.  The judge awarded the appellant $85,000 for non-pecuniary damages.  He assessed damages for income loss between the date of the accident and the date of trial at $23,000.  The judge awarded the appellant the sum of $120,000 as damages for future loss.  It is this particular award that has led to the present appeal.  The appellant asserts that the amount awarded for future loss was unreasonably low.  The respondent submits it was an adequate award and says that if anything the award may have been on the generous side.
The BC Court of Appeal agreed with the Plaintiff that the damages for future wage loss were low given the findings of fact made by the trial judge.  In increasing the future wage loss award to $225,000 the Court summarized and applied the law of future wage loss as follows:

[18] In the recent case of Lines v. W & D Logging Co. Ltd., 2009 BCCA 106, Saunders J.A. said this:

[57]      There are two major components to an assessment of loss of future earning capacity.  One is the general level of earnings thought by the trial judge to be realistically achievable by the plaintiff but for the accident, taking into account the plaintiff’s intentions and factors that weigh both in favour of and against that achievement, and the other is the projection of that earning level to the plaintiff’s working life, taking into account the positive and negative vagaries of life.  From these two major components must be applied an analysis that produces a present value of the loss, adjusted for all appropriate contingencies.

[19] I think this to be a helpful framework for a court to follow in fixing a measure of damages for future loss.  Some cases speak of the loss of a capital asset and some of the loss of future earnings, but the essential matter that engages the attention of a court making an assessment in this area is to endeavour to quantify the financial harm accruing to the plaintiff over the course of his or her working career.

[20] In the case at bar, the trial judge said this in making his award for future loss:

[79]      Given the significant negative contingencies present here however, I am not satisfied that the award under this head of damages should be as high as suggested by plaintiff’s counsel.  I note that he is currently working alongside his father and being paid the same hourly rate.  He does, however, work fewer hours, partly in response to his lower back pain.  In all of the circumstances, I assess his loss of future earning capacity at $120,000.

[21] While there is unquestionably a measure of uncertainty about what the future holds for a person in the position of this appellant with a long working life ahead of him, the judge did not explain what he considered in arriving at that figure.  Particular contingencies are not identified and, perhaps more significantly, there is virtually no reference to the figures put forward by the parties’ experts, aside from a reference to some figure suggested by appellant’s counsel, presumably the $470,000 figure aforementioned.  The task of this Court in deciding on the adequacy of the award for future loss is made difficult because we are left with little to demonstrate how the figure of $120,000 was assessed as an appropriate damages award under this head by the trial judge.  Having regard to the evidence before the judge, particularly the reports of the two economic experts, the award appears to me to be unduly modest.

[22] I have considered whether the case might be remitted to the Supreme Court to deal with this issue in a more satisfactory fashion.  The appellant urged us, if we considered the award of damages inadequate, to set a figure.  It was submitted that considerations of cost and timing would support such an approach.  While this Court is usually reluctant to embark upon its own assessment of what is an appropriate figure for damages, I consider that this case calls for that treatment.  I reach this conclusion because there were no particular live issues of credibility in the instant case and the judge was of the view that he should generally accept the view of the medical experts called by the appellant.  We have the evidence of Messrs. McKellar and Gosling before us.  I consider it would not be appropriate to refer this matter back to the trial court for a new assessment having regard to the amounts involved and the additional delay and expense that would be occasioned.

[23] It seems to me that the figure adumbrated by Mr. Gosling, approximately $300,000, is a useful starting point for an analysis of the loss suffered by the appellant under this head.  Although the earnings history of the appellant did not indicate that he had a history of earnings at around $32,000, which was a statistical figure used by the experts for a person with slightly better educational qualifications, it must be borne in mind that the appellant was just starting out and his historic earnings reflected the situation when he was just entering his twenties.  The level of income referred to by the experts seems to me to be not unrealistic.  A person in the occupation of the appellant with his work ethic should be able to achieve such earnings.  He apparently expected to earn perhaps something over $35,000 in the period immediately preceding the trial.  Of course, his ability to continue to earn at such a level is thrown in doubt by the medical opinions accepted by the judge.  The substantial difference between the experts as to expected loss in future income appeared to relate to their differing treatment of labour market contingencies.  Mr. Gosling essentially took a more pessimistic view concerning labour market contingencies than did Mr. McKellar.

[24] In this case, I consider the approach of Mr. Gosling to be preferable because of the very long span of time left in the expected working life of the appellant.  The length of time to be considered in my view mandates a fairly conservative approach to any prediction of future loss.  However, I do not perceive, as I noted, how the judge arrived at the figure he did.  I view as erroneous his treatment of the educational level of the appellant.  Perhaps this led him to very heavily discount the loss predictions.  I consider that, if one utilizes the approach suggested by Mr. Gosling as a helpful starting point, having regard to the facts in this case, a reduction of the magnitude reflected in the award of $120,000 under this head is not justified.  I think it is significant that this appellant has a very good work ethic and there was and is wide scope for employment opportunities in the construction field through the extended family of the appellant.  Opportunities for advancement in, and indeed continuation by the appellant in this field of endeavour are now considerably attenuated as a result of the accident.  The appellant’s back problem is likely to persist, based on the medical evidence, and there is a very real narrowing of future opportunities for him.  Thus, this injury appears very likely to result in a diminution of career options and, consequently, a long term earnings impairment.

[25] The work ethic of the appellant has to be taken account of in an assessment of a proper figure for future loss.  His positive work ethic suggests that, but for the accident, the appellant might have looked forward to earning more than the statistical average figures posited by the experts.  Thus, one could suggest his loss could be greater over his future earning years than suggested by the statistical figures.  His attitude to work, however, also means that he may in fact do better than expected in future despite his injury because he will not be as affected as might be the case with a person with a less robust work ethic.  This consideration would suggest a lesser loss than the statistical figures relied upon by the experts.  While the defendant tortfeasor must take the appellant as he finds him concerning educational level, he also in this case gets the benefit of a plaintiff with a positive work attitude.  These factors are to be taken account of and balanced in arriving at a fair assessment of damages for future loss.  Doing the best I can with the evidence and adopting a cautious approach because of the long time span, I am of the view that some discount from the amount resulting from the approach of Mr. Gosling would result in an appropriate award under his head of damages.  A discount ranging around $75,000 to $80,000 seems to me justifiable because of the work ethic of the appellant.  This yields a figure of about $225,000 for future loss and this is the amount I would substitute for the figure set by the trial judge.  I would accordingly allow the appeal in these terms and award the sum of $225,000 under the head of future loss.

More on ICBC Injury Claims and Future Wage Loss

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Spine Injury Cases, ICBC Wage Loss, Uncategorized.

If you are injured through the fault of another motorist in BC and advance a tort claim with ICBC can you receive damages for future wage loss even if you have sustained no past wage loss by the time of settlement or trial?  The short answer is yes and today 2 cases were released by the BC Supreme Court illustrating this principle.  
In the first case (Kasic v. Leyh) the Plaintiff was injured in a 2004 rear-end collision.  He suffered relatively serious and chronic injuries which were summarized as follows by Madam Justice Morrison of the BC Supreme Court:

[138]      Mr. Kasic’s headaches and neck pain which he suffered immediately after the accident resolved within a fairly short time.  However his lower back pain has not.  Ever since the accident, he has had serious and chronic pain.  That continues to this day.  He has been motivated and compliant with regard to all treatments suggested, with the exception of the Pulsed Signal Magnetic Therapy.

[139]      The medical evidence is not in complete agreement as to the exact diagnosis that is causing the pain in the lower back; Dr. McGraw believes that it is the sacroiliac joint, Dr. Hershler is of the opinion that it is a bulging disc irritating a nerve, or a combination of that and the sacroiliac joint.  But there is agreement that Mr. Kasic’s symptoms are aggravated by his activities.  And there is certainly agreement from all the evidence tendered that Mr. Kasic is in continuous and serious pain.

[140]      Will it be a permanent disability?  Dr. Hershler holds out hope that there could be a significant improvement if Pulsed Signal Magnetic Therapy were pursued.  But this is not a form of treatment widely recognized by the medical profession, and certainly not by Dr. McGraw.  Dr. McGraw seemed to hold out hope that if there were a correct administration of the injection of the therapeutic block, that this could eliminate some or much of Mr. Kasic’s pain.  Certainly the one injection in October 2008 in that area worsened Mr. Kasic’s condition.

[141]      Whether either or both of these suggested treatments are to be tried will be a matter between Mr. Kasic and his medical advisors.  But at the present time, the evidence remains that Mr. Kasic is suffering continuous and debilitating pain, and it has been chronic pain since the date of the accident.  It has changed him physically, mentally and emotionally.

[142]      The changes to Mr. Kasic’s life as a result of his injuries are many.  He continues to need pain medication.  His previous activities of bowling, tennis, soccer, bocce ball, baseball and picnics are no longer activities in which he can participate.  He can help very little around the house, whether it is vacuuming, loading or unloading the dishwasher, moving furniture, or doing yard work.

[143]      He cannot plan to buy his own home, as he can no longer do the jobs and the outside work that he would normally have done.  His leisure activities with his wife and children have been diminished dramatically, as has his intimate and sexual life with his wife.  He has continuous problems sleeping, and his wife often sleeps in another room.  Mr. Kasic’s mood, disposition and temper have changed significantly.  He cannot do the most simple things such as dressing himself, taking a shower or brushing his teeth without unusual discomfort, positioning and pain.

[144]      An undisputed hard worker, Mr. Kasic stated, “I like to work hard to make more money for my family.”  His work history has indicated that, both before and after the accident.

[145]      Mr. Kasic’s ability to earn in the future has been compromised.  It is an asset he has, in part, lost.  His injuries have rendered him less capable overall from earning income from all types of employment, particularly those that require twisting, bending, standing, sitting for any length of time, or involve any kind of heavy work.  He is less marketable or attractive as an employee to potential employers.

[146]      One presumably has an obligation to advise a future employer if there are concerns such as chronic back problems.  This plaintiff has lost the ability to take advantage of job opportunities which he might otherwise have had.

[147]      Mr. Kasic appears to consider himself less capable and less valuable as a person, because of his condition.  He was 45 when this accident occurred.  He is 50 years of age now.  The real probabilities he faces are fewer jobs available to him, the chance of losing a job or jobs, and possibly having to retire early.  His reduced level of energy and inability to sustain work are factors to be considered.

Despite these serious and permanent injuries the Plaintiff had suffered a minimal wage loss by the time his tort claim against the at fault motorist went to trial.  In fact, the Plaintiff’s earnings increased from the time of the collision to the time of trial.  Depsite this the court held he was entitled to damages for loss of earning capacity and in assessing this loss at $100,000 the court reasoned as follows:

[152]      On the issue of loss of earning capacity, clear guidance can be found in the judgment of Huddart J.A. in Rosvold v. Dunlop.  Mr. Kasic’s capacity to earn income is an asset which has been, in part, taken away from him.  I have found that he has a permanent partial disability, and that limits his work in a number of areas, which in turn impairs his earning capacity.

[153]      The defence seems to suggest that Mr. Kasic has reached his goal upon coming to Canada, that his work as a caretaker together with a rental apartment in subsidized housing suggests that he has reached his earning capacity and goals.  They point to his past earnings, and note that he has steadily increased his earnings, which is true.  But as the courts have reminded us, past earnings are only one factor to consider.

[154]      The standard of proof to be applied in making an appropriate damage award under this category is simple probability, not the balance of probabilities.  And the Athey case reminds us that possibilities and probabilities, chances, opportunities and risks all have to be considered, as long as they do not amount to mere speculation.

[155]      Counsel for the plaintiff suggests that there is the possibility that Mr. Kasic will have to retire early, and I agree that this is a possibility.  Counsel argues that even if he had to retire just three years early, this would be a loss equivalent to $150,000.  This is based on Mr. Kasic’s earnings in 2007 of just over $40,000, and both counsel have factored in an additional $10,000 because of the generous housing allowance and benefits.  This would amount to a real loss of $50,000 a year or $150,000 if Mr. Kasic retired three years early.

[156]      Taking into account negative as well as positive contingencies, in my view an appropriate damage award for loss of earning capacity would be $100,000, and I award that amount.  In my view, the position taken by the defence with regard to this issue has been unrealistic, and their suggested figure of $10,000 under this category of damages does not meet the test of fairness and reasonableness.

In the second case released today (Weibe v. Peters) the Plaintiff was injured in a 2003 motor vehicle collision.  The Plaintiff was a career tradesman who worked as a vinyl deck installer.  As a  result of the collision Mr. Justice Grist of the BC Supreme Court found that the Plaintiff “will continue to have long term back pain fron the injuries suffered fron the collision which will restrict him from certain forms of physical activity...”

Despite his injuries the Plaintiff lost a minimal amount of time from work by the time of trial.  In awarding $125,000 for the Plaintiff’s diminished earning capacity Mr. Justice Grist engaged in the following useful analysis:

[32]        The wage loss prior to the date of trial in this case is confined to a minimal number of days off because of back pain, with some time loss to attend doctors’ appointments and physiotherapy. The plaintiff has not been able to provide a record of this wage loss and I cannot fix any sum under this head. As to loss of future earning capacity, I accept that Mr. Wiebe took his present form of employment because he was not able to maintain the physical demands of installations of vinyl decks. Further, he was not able to obtain a management position that would have relieved him from the demands of actual installations. He acted appropriately in taking the position he now holds, which pays the same as his past employment without the benefits which that employment offered. Again, there is no evidence of the value of lost benefits. I accept the evidence that the employment through Mr. Hepple has very little security. He is the only employee and dependent on success of both the turkey farm and the concrete mantle manufacturing business. Mr. Hepple is happy with the plaintiff’s work, however, as both the plaintiff and Mr. Hepple acknowledged, the earnings provided are probably more than this form of employment can justify. If Mr. Wiebe cannot continue in this form of work, he will likely have to retrain or find some opportunity as a manager in a deck installation company, a form of work he hasn’t been able to secure despite efforts in the past. In light of the risk inherent in being let go by his present employer, on balance I think it most likely that Mr. Wiebe will have to face this change of employment in the future, and that retraining is the most likely prospect. I keep in mind the factors mentioned in Kwei v. Boisclair, [1991], B.C.J. No. 3344 (C.A.), and Brown v. Golaiy, [1985] B.C.J. No. 31 (S.C.). In setting damages under this head of loss, specifically:

1.         The plaintiff has been rendered less capable overall from earning income from all types of employment;

2.         The plaintiff is less marketable or less attractive as an employee to potential employers;

3.         The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him had he not been injured; and

4.         The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

[33]        The plaintiff has been well regarded by his employers and has shown industry and responsibility to his family in retaining employment through the difficulties to the present time. I expect this will serve him well in the future. Nonetheless, retraining and start-up in a substitute form of employment will require a considerable period of time before Mr. Wiebe will be able to reproduce his past level of earnings.

[34]        The cases cited vary widely in fixing the loss of future earning capacity. At the high end, in Fox v. Danis, [2006] B.C.J. No. 1437 (C.A.), damages under this head of loss totalled $750,000. This however, was a case involving an individual likely to lose all forms of full-time employment. In Demedeiros, the head of damage was compensated in the sum of $180,000. This case, however, involved a stone mason who may have lost the opportunity to succeed his father in a fairly remunerative family business. In Kerr, the plaintiff was a 54 year old school teacher who had lost his ability to participate actively in sports, but who continued in his employment. It was judged that he may be forced to retire earlier and may be restricted in gaining employment after retirement. Damages under this head were assessed in that case at $75,000.

[35]        I view the likely loss here as greater in scope than indicated in Kerr but not of the degree of loss in Demedeiros and Fox. I think the appropriate level assessment under this head is the sum of $125,000.