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$100,000 Pain and Suffering Award for L4-5 Disc Protrusion

In this personal injury lawsuit the claimant, in his early 20s at the time of the car accident, sustained injuries to his neck, wrist, shoulder, and lumbar spine . The other driver conceded guilt for the accident so the case issues were:(1) the type of injuries; and (2) compensation amount to be awarded for the injuries.(Domijan v. Jeon,2018 BCSC 1988)

The claimant was driving a large truck on Government Road near Costco in Burnaby when the defendant’s vehicle exited the Costco parking lot and attempted to turn left. The vehicles collided and were damaged.

On this issues of the nature of the injury, the court did not accept the opinion of  Dr. Rickards, appearing for the defendant. “In fairness to Dr. Rickards, he stated this diagnosis in guarded terms using the word “possibly” numerous times. I prefer the testimony of Dr. Nikolakis and Dr. Appleby, that the plaintiff has a disc protrusion, specifically an L4-5 intervertebral disc injury with central disc herniation.”.

Pain and Suffering Award

In this injury case there was no evidence that the claimant suffered from psychiatric issues, such as depression, from the car accident. He had demonstrated some success after the car accident despite the physical labour of his work. He worked through the pain, although in pain. He was not completely disabled from work. The claimant was not a complainer, and kept his pain largely to himself, presenting as a stoic young man.

[129]   It would be improper to penalize Mr. D for his stoicism, a factor that should not, generally speaking, be held against a plaintiff: Stapley at para. 46; Clark v. Kouba, 2014 BCCA 50; and Giang v. Clayton, 2005 BCCA 54 at para. 54.

The claimant was awarded $100,000 for his pain, suffering and loss of enjoyment of life. This amount recognizes the claimant’s ongoing pain, loss of enjoyment of life, especially his inability to participate in sports, and the longevity of his claim.

In awarding $650,000 for loss of future earning capacity the Judge wrote a pithy statement of the law:

[156]  As noted above, the assessment of loss must be based on the evidence. This requires an exercise of judgment and is not simply a mathematical calculation. However, the court should endeavour to use factual mathematical anchors as a starting foundation to quantify such loss: see Rosvold v. Dunlop, 2001 BCCA 1 [Rosvold] at paras.11 and 18; Jurczak v. Mauro, 2013 BCCA 507 [Jurczak] at paras. 36-37; and Knapp v. O’Neill, 2017 YKCA 10, at para. 19. Of the two accepted approaches, the earnings approach will be more appropriate when the loss is more easily measurable: Westbroek v. Brizuela, 2014 BCCA 48 at para. 64.

[157]  The court must always consider the overall fairness and reasonableness of the award, taking into account all of the evidence: Rosvold at para. 11.

There were no real credibility issues and the award totalled $855,906.38. The following is a summary of the complete injury award:

a)    $100,000 for non-pecuniary damages (pain and suffering);

b)    $79,097.16 for past wage loss;

c)     $650,000 for loss of future earning capacity;

d)    $18,995 for costs of future care; and

e)    $7,814.22 in out of pocket expenses.

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

Tags: degenerative disc disease, icbc case examples, loss of earning capacity, offer to settle, Pain and Suffering

"Renn A. Holness is a gifted lawyer and author to over 1000 legal blog articles. Married father of two daughters, son of a neurosurgeon and founder of Holness Law Group."

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