ICBC injury claims can often involve valuing pain and suffering for children and teenagers. This personal injury claimant was a 9 years old passenger in the front seat of her mother’s minivan when another vehicle failed to yield the right of way and collided with her right front bumper(Toopitsin v. McMullen,2014 BCSC 1486). She claims to have suffered soft-tissue injuries in the car accident and that her function was still limited by pain from those injuries. Her claim was for pain and suffering and reduction of her future earning capacity.
The only expert medical evidence on prognosis was from a Rheumatologist that found she had reached maximum medical recovery from her accident-related injuries. There was no medical evidence endorsing ICBC’s position that the claimant will have a full recovery if she adheres to a regimen of physical exercises in the future. That is never a proposition that the court is permitted to adopt as an exercise in intuition or speculation with no evidence.
The Judge therefore found that the symptoms will be a permanent but will not have a devastating impact upon her function in the future. The symptoms will limit her tolerance for activities that require prolonged bending or stooping, lifting or carrying heavy weights, and sitting in one position for more than two or three hours at a stretch. Her symptoms will not prevent her from doing these things, but she will experience increased pain as a result of doing them.
With respect to loss of earning capacity the claimant had not yet selected a career but several suggested careers were in the $60,000 – $75,000 range. Those careers included dental technician at $71,000 per year.
ICBC, insurer for the defence, argued that the claimant was to blame in part for not getting better. The Judge disagreed and stated, “… [the claimant] was just a little girl … I do not think it reasonable to expect the same level of foresight and perseverance in a 10-year-old girl as one does from an adult. ”
The Judge awarded the following:
|Pain and Suffering||$45,000.00|
|Reduction of Earning Capacity||$60,000.00|
|Out-of-Pocket Expenses||$ 3,365.05|
Issue: Is $45,000.00 enough money for pain and suffering in this case?