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Tag: ICBC Whiplash Cases

$40,000 Pain and Suffering Awarded in ICBC Injury Claim Involivng Soft Tissue Injuries

I am in trial this week and am a little short on time so this ICBC Injury Law update will be a little light on my desired level of analysis. 
Reasons for judgement were released today (Lai v. Wang) compensating a Plaintiff for injuries sustained in a 2004 motor vehicle collision in Vancouver, BC.
In this ICBC Claim the Court found that the Plaintiff sustained various soft tissue injuries which plateaued after several months leaving the Plaintiff with occasional pain.  The Court’s key findings and assessment of damages can be found at paragraphs 34-38 which I reproduce for your convenience:

[34]            I am of the view that the plaintiff has suffered significant, but not disabling, pain, which should largely be compensated in damages for loss of enjoyment of life.  I expect it will continue for some time into the future on an annoying, but not disabling basis, but that he will likely recover as Dr. Fenton suggests.  The cases which seem to me to offer the best guidance are Hubbard v. Saunders, 2008 BCSC 486, and Jackson v. Gow, 2001 BCSC 54.  I am of the view that $40,000 is an appropriate amount for these damages.  I should add that there was some evidence of pre-accident complaints of pain requiring treatment.  I do not think it was demonstrated that any of those problems were aggravated in a sense that required them to be taken into account.

[35]            I do not accept the mathematics offered by the plaintiff for past income loss.  I accept that the plaintiff may have lost some work due to pain while he worked at the Face Shop, but do not accept that he was disabled in relation to the jobs he chose to do.  I estimate the actual interference with work he was available for and willing to do at $1000.

[36]            With respect to loss of future earning capacity, I accept that the injuries the plaintiff suffered may affect his income earning capacity on the basis outlined in Palmer v. Goodall, [1991] 53 B.C.L.R. (2d) 44 (C.A.):

…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 ability.

[37]            Mr. Lai is not disabled from the kind of work he has chosen in the past to do, and the kind of work he expects to qualify for in the future.  He does, nevertheless, have a level of pain that Dr. Condon considers chronic and Dr. Fenton believes will ultimately resolve, particularly if the plaintiff works through the pain in the short term.  I think it likely that the plaintiff will ultimately reach a point where he is only occasionally troubled by pain.  When that may be is unknowable.  In the meantime, although the plaintiff is unlikely, in any event, to work in fields imposing significant physical demands, he will suffer a loss of capacity to do such work, for which he is entitled to some compensation.  I fix those damages at $25,000.

[38]            The plaintiff is entitled to special claimed damages for sums expended to date, which I gather are agreed at $5193.  I do not think the plaintiff can be faulted for the amounts spent in trying to obtain relief from the consequences of the accident to the date of trial.  I am not satisfied that the $1200 for the Taiwan airplane ticket is justified and deny that claim.  I accept that the plaintiff will require occasional prescriptions and therapy in the future, although such an award should be modest.  I allow $1000 for this.  I reject, as speculative, the pulse therapy suggested by Dr. Condon.