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$170,000 Pain and Suffering Award for Depression and Chronic Pain

Personal Injury Award to provide a Quality of life
This injury claimant was awarded almost $1 million after suffering chronic pain injuries from a car accident. The accident occurred at the intersection of Fraser Street and 41st Avenue in Vancouver. The claimant’s vehicle was in the dedicated left turn lane and the defendant, intending to drive to the front of the left turn lane to travel south collided with the right front of the claimant’s vehicle (Manoharan v. Kaur, 2016 BCSC 692).
The claimant was an ambitious and diligent woman, being  the sole breadwinner for her family. She was trying to better her financial position but the accident injuries considerably reduced her ability to earn an income in the years before the trial. It was likely that but for the accident she would have achieved certification as a CGA perhaps within three or four years after the accident, according to the judge.
The judge also concluded that there was a real and substantial possibility the claimant would suffer loss of income earning capacity in the future caused by the accident related injuries. Determining the amount of that lost in the future is not just a matter of mathematical calculation. It requires the application of judgment. The claimant, according to the law, is entitled to be put back into the position she would have been in but for the accident.

The claimant argued that further post-accident income should be added to account for the possibility that she would have worked into her early 70s. The judge agreed that the that the injury claimant’s character and personality indicated there was a real and substantial possibility that she would have continued working much later in life.  Judge assessed $20,000 to account for this factor. The judge’s $400,000 award for loss of earning capacity was articulated in this way,

[53] To determine the damages to which the plaintiff will be entitled for loss of future earning capacity it is necessary to determine what she actually will earn in the future and subtract that sum from the $800,000 described above. In my view, she is likely to work only part time and it is my opinion that she has lost about one half of her ability to earn income. In reaching this conclusion I have considered that the plaintiff will probably become a CGA in her late 50s. That will be considerably later in her working life than most professional accountants achieve and she will have relatively few years to take advantage of that designation. Notwithstanding that she will probably eventually become a CGA I remain of the view that she has lost about one half of her pre-accident capacity to earn an income between the date of the trial and her eventual retirement from the workforce. The result is that I assess the plaintiff’s damages for loss of future earning capacity at the sum of $400,000.

In awarding $170,000 for pain and suffering the Judge was quick to quote from the recent case of Karim:

[35]   In Karim v. Li, 2015 BCSC 498, Abrioux J. wrote in paras. 120 to 122:

[120] Non-pecuniary damages are awarded to compensate the plaintiff for pain, suffering, loss of enjoyment of life, and loss of amenities. The compensation awarded should be fair to all parties and fairness is measured against awards made in comparable cases. Such cases, though helpful, serve only as a rough guide as each case depends on its own unique facts: Trites v. Penner, 2010 BCSC 882 at paras. 188-189.

[121] The framework for the assessment of non-pecuniary damages was outlined by the Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34:

[46]  The inexhaustive list of common factors cited in Boyd [v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages includes: (a) age of the plaintiff; (b) nature of the injury;(c) severity and duration of pain;(d) disability;(e) emotional suffering; and (f) loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list: (g) impairment of family, marital and social relationships; (h) impairment of physical and mental abilities; (i) loss of lifestyle; and (j) the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff): Giang v. Clayton, 2005 BCCA 54.

The quality of the claimant’s life was much diminished by the accident injuries and her prognosis while not entirely bleak was nevertheless not favourable. Notwithstanding Dr. Craig’s report of a discrepancy between the claimant’s “pain behaviours” and her objective testing, the court accepted that the claimants complaints were genuine.
The total personal injury claim award cab be summarised as follows:

Pain and Suffering $170,000
Past loss of earning capacity $105,000
Loss of future earning capacity $400,000
Present value of future care costs $234,570
Housekeeping costs
(past and future)
$27,500
Out of Pocket Expenses $47,097.00
TOTAL: $984,167.00

Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

Tags: icbc case examples, ICBC Injury claim, Late Retirement, loss of earning capacity, Pain and Suffering, Soft tissue injury

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