$35,000 Pain and Suffering Awarded for Wrist and Soft Tissue Injuries

Written reasons for judgment were released today by Madam Justice Stromberg-Stein of the BC Supreme Court awarding a Plaintiff just over $60,000 for her losses and damages as a result of a 2005 BC Car Accident.
The Plaintiff was in her mid 20’s when she was involved in an intersection crash involving a left turning vehicle. The lawyer for the offending driver admitted liability (fault) for the accident leaving the issue of quantum of damages (value of the injuries) to be addressed at trial.
The Plaintiff suffered several injuries including soft tissue injuries to her neck and lower back. Her most significant injury was a fibro-cartilage tear of her right wrist and a possible scapholunate ligament injury as well.
The Plaintiff had 14 sessions of physiotherapy which created ‘some improvement’ of her neck injury. The Plaintiff had an MRI of her wrist which revealed a tear of the triangular fibro-cartilage complex (a “TFC tear”). The Plaintiff had a cortisone injection in her wrist which offered some temporary relief. Arthroscopic surgery was also recommended by an orthopaedic surgeon but the Plaintiff elected not to have this procedure done until her son was older.
The Plaintiff’s lawyers sought just over $150,000 in damages as a result of these injuries. The defence lawyers suggested numbers were significantly lower. Such a discrepancy is common in most ICBC injury claims that go to trial.
After hearing the evidence the court awarded damages as follows:

a) $35,000.00 for non-pecuniary damages;

b) $7,812.00 for past wage loss, subject to Part 7 and statutory deductions;

c) $486.99 for special damages;

d) $20,000.00 for diminishment of earning capacity; and

e) $1000.00 for cost of future care.

The court’s discussion relating to ‘diminshed earning capacity’ is worth reading for anyone advancing an ICBC injury claim concerned with future wage loss. In this case the Plaintiff was able to return to work for a period of time following the accident before leaving the workforce on maternity leave. By the time of trial the Plaintiff was retraining for a different profession. The court agreed with the defence lawyers point that this change of careers ‘is a natural progression for somebody (in the Plaintiff’s) position‘ and the court also put weight in the defence lawyer’s position that the Plaintiff ‘never worked a full year.’
The court cited one of the better known quotes from the BC Court of Appeal addressing ‘diminished earning capacity‘ which states:
Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning ability.
The court concluded that only a ‘modest award‘ was appropriate for the Plaintiff’s diminished capacity and awarded $20,000 for this loss.
Do you have questions about an ICBC wrist injury claim or an ICBC claim involving ‘diminished earning capacity‘ (future wage loss)?  Do you need advice from an ICBC claims lawyer?  If so, click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken (Services provided for ICBC injury claims throughout BC!)

$1.065 Million Awarded to Brain Injured Plaintiff

In highly anticipated reasons for judgement released today, following a 4 week trial in late 2007, Mr. Justice Maczko awarded a severely injured Plaintiff over $1,000,000 in compensation as a result of a motor vehicle accident.
The issues to be decided at trial were liability (who was at fault) and quantum (the value of the injuries) as a result of a significant accident which occurred in West Vancouver, BC in 2004.
The Plaintiff, who was 26 years old at the time, was standing in a roadway in West Vancouver when he was struck by a Hummer SUV driven by the Defendant. The Plaintiff sustained serious injuries including a traumatic brain injury, scalp wound, bilateral wrist and jaw fractures, the loss of several teeth, and soft tissue injuries to the neck and back. The traumatic brain injury was the most significant of these in terms of the Plaintiff’s employability and need for future medical care.
In the end the court found the Defendant entirely at fault an awarded over $1,000,000 in damages to the Plaintiff.
Addressing the issue of liability at paragraph of 127 of the judgement, the court held as follows:

[127] The Hummer travelled too quickly for the existing conditions. Mr. Samieian was negligent in moving his vehicle too quickly and travelling around the cube van when his view of his path was obscured. It is more likely that the accident arose from driver error than from a complete failure of all controls on the Hummer. It is unlikely that steering, braking and acceleration all malfunctioned at once, and without leaving anything detectable on inspection after the accident.

[128] As a result, the defendants are entirely responsible for the accident and for the losses it caused Mr. Dikey.

As is often the case in ICBC claims involving brain injuries, the court heard from numerous expert physicians including neurologists, a neuropsychologist, and a Physiatrist (physical medicine and rehabilitation specialist).
In the end the court made the following findings regarding the Plaintiff’s injuries:

[109] In summary, Mr. Dikey suffered many injuries as a result of the accident. The most significant injury in terms of functioning was the traumatic brain injury. The preponderance of evidence suggests that the injury was moderate when it occurred, but this is of little assistance in determining the long-term impact of the injury.

[110] Mr. Dikey’s continuing cognitive problems include significant limitations with memory, planning, organizing, attention, concentration, awareness, judgement, decision-making, language, reasoning, abstract thinking, mental flexibility, and calculations. He forgets to eat and take his medications regularly, and forgets appointments. He also suffers depression, isolation and limited social support and interactions. He has minimal initiation and motivation.

[111] Mr. Dikey suffered serious head and jaw injuries. Dr. Goldstein recommends investigating jaw reconstruction, likely requiring refracturing the jaw on both sides, and tooth replacement. Mr. Dikey and his family were undecided for several years about whether to pursue that treatment, owing to the risk of damage to a facial nerve. The evidence suggests that the risk is small and any damage that might occur would probably be temporary.

[112] Mr. Dikey suffered two broken wrists. His left wrist healed appropriately, but the right wrist did not. He does not have pain-free full range of motion of his right wrist owing to the way the fracture healed. The suggested surgery will give him a very good chance of increased range of motion without pain.

[113] Mr. Dikey suffered injury to his right knee. The recommended surgery for his right knee would have a good likelihood of relieving his right knee pain.

[114] Mr. Dikey has continuing pain from his soft tissue injury to his neck and back. His cuts and bruises have healed, but he has a visible scar on his forehead and in his scalp. His primary complaint is of headaches, which can be so bad at times that they lead to vomiting. They are his most frequent and significant cause of pain.

The court summarized the profound effects of the injuries as follows:
[142] Mr. Dikey’s life has changed profoundly as a consequence of the accident. He is unlikely to work, and has lost the self-esteem, enjoyment and income that is available from work. While he retains the ability to walk and talk and engage in the activities of daily living, his cognitive problems are such that he will require some assistance for the rest of his life. His most significant loss is the loss of cognitive abilities. He also suffers severe headaches. He has chronic pain in the neck. His pain and the lost function of his right wrist are likely to improve following surgery. He will likely have on-going problems with his neck and back.
In the end damages were assessed as follows:
$215,000 for non-pecuniary damages (pain and suffering)
$500,000 for lost future earning capacity
$350,000 for cost of future care
If you have questions about an ICBC claim or a brain injury claim that you would like to discuss with an ICBC claims lawyer feel free to contact Erik Magraken for a free consultation.

BC Supreme Court Awards $50,000 Non-Pecuniary Damages for Dislocated Elbow

In reasons for judgement released today, Mr. Justice Wilson awarded a total of $180,995.90 plus Court Costs in compensation to a young man who was injured as a passenger in a 2004 motor vehicle collision in Ucluelet, BC.
The Plaintiff was a back seat passenger. His vehicle left the road and hit a tree.
The court made its findings of fact addressing injuries at Paragraph 26 of the judgement where the court held that:
[26] In the result, then, I conclude that Mr. Thorp sustained a minor injury to his wrist which had cleared up within two weeks. I also conclude that he sustained a posterolateral dislocation of the right elbow. Although Mr. Thorp did well in his recovery in the initial period, he continues to have some restriction on range of motion and ongoing discomfort, particularly in performing physical activities. Although the pain may be due to the calcification in the elbow which might go away over time, he can expect to have that for a considerable period of time. I accept the opinion of Mr. Vanderboer that Mr. Thorp does have pain-related limitations in the strength of his right arm, and his endurance and tolerance for activity. I thus accept Mr. Vanderboer’s opinion that he is not physically capable of manual labour-type occupations, and the opinion of Dr. Gutmanis that if he chose to pursue more physical work, he would have greater likelihood of the development of post traumatic arthritis. I also accept Mr. Thorp’s evidence that, as a result of the ongoing pain, he has restricted many of his previous physical activities.
The court did a great job reviewing applicable case law addressing loss of future earning capacity at paragraphs 53-68 of the reasons for judgement.  This was necessary because the Plaintiff was a young man with a potentially permanent elbow injury.  The effects of this closed the door to certain employmnet opportunities thus giving rise to a claim for future wage loss.  After applying the facts to the law Mr. Justice Wilson awarded a total of $50,000 for Loss of Future Earning Capacity.
Damages of $50,000 were awarded for Pain and Suffering and a further $80,000 was awarded for past wage loss.
This is one of the few recent BC court cases addressing fair compensation for non-pecuniary loss (pain and suffering) for a dislocated elbow.  The difficulty the lawyers had finding similar elbow injury cases to help guide the court is acknowledged at paragraph 29 of the judgement.  If you are engaged in settlement negotiations with ICBC for pain and suffering for an elbow injury this case is worth a quick read.
Do you have questions you would like answerd by an ICBC Claims Lawyer regarding an elbow injury? Click here to contact Erik Magraken for a free consultation to discuss your claim.

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If you would like further information or require assistance, please get in touch.

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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