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$1.2 Million Injury Award for Concussion, Tinnitus and Depression

This 47 year old plumber and business owner suffered injuries in a car accident on Highway 97 just south of Quesnel, B.C.  The other driver’s GMC pick-up truck crossed over the highway’s center line and collided with a trailer being towed by the claimant and traveling in the opposite direction.  The next morning he called ICBC and reported the accident. Fault for the accident was admitted by the other driver. (Niessen v. Emcon Services Inc.,2018 BCSC 1410)

The judge found that he suffered headaches, tinnitus, depression, social withdrawal, sleep disruption, cognitive problems including an inability to concentrate and impaired memory, anxiety, and symptoms consistent with PTSD as a result of his motor vehicle accident. His neck and back pain fully resolved before trial. The ICBC claimant had lingering symptoms of a concussion.

While certain diagnoses or labels may assist in the analysis, the focus remains on the claimant’s symptoms, their endurance, and their overall effect upon the claimant’s life. As noted in Bricker v. Danyk, 2015 BCSC 2404 at para. 123:

… the issue for the court is not so much the label or diagnosis attached to a particular condition, but rather the extent to which the condition has affected a plaintiff in his or her social, recreational and employment pursuits (see Bagnato v. Viscount, 1995 CanLII 418, [1995] B.C.J. No. 2752 at paras. 28-29, … (S.C.)).

For pain and suffering compensation the claimant sought an award in the range of $180,000. The Claimant relied  upon Sebaa v. Ricci, 2015 BCSC 1492Pearson v. Savage, 2017 BCSC 1435; Chaudhry v. John Doe, 2017 BCSC 1895; and Pololos v. Cinnamon-Lopez, 2016 BCSC 81. The defendants suggested that an award of $100,000.

The judge found it instructive to reiterate the underlying purpose of compensation for pain, suffering and loss of enjoyment of life.  Lindal v. Lindal, supra, at 637 is always a helpful reminder:

the amount of an award for [pain and suffering] should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation.

 The Court must make an award of damages for pain and suffering and loss of enjoyment of life tailored to the specific circumstances of each claimant after consideration of the relevant case law. In ICBC injury claims it is important to take into account the financial inability of the claimant to pay for needed medical treatment to ameliorate the condition.

In awarding the injury claimant $170,000 for his pain and suffering the judge found the symptoms had a significant impact on his social, recreational, and employment-related functioning. His symptoms also affected his personality, work ethic, and general attitude toward life.

The total personal injury award was as follows:

1.Pain and suffering: $170,000

2. Loss of past income earning capacity: $189,850
3. Out of Pocket Expenses:$11,000
4. Loss of future income earning capacity: $846,000
5. Cost of future care: $6,000
TOTAL: $1,222,850
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

Tags: Chronic Pain, icbc case examples, loss of earning capacity, Pain and Suffering

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