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$210,339 Awarded to Plaintiff for Chronic Myofascial Pain, Headaches & PTSD in ICBC Case

In the recently published case of Burke v. Artz, 2011 BCSC 850, Mr. Justice Rogers awarded general damages of $81,000 for personal injury arising out of a car accident that took place in Vernon in December 2005.  The crash occurred as Ms. Burke was completing a left hand turn.  The Defendant’s vehicle approached from the side and struck the left rear quarter panel of Ms. Burke’s vehicle, causing Ms. Burke’s vehicle to spin 180 degrees.  When Ms. Burke looked out her windshield she saw logging trucks heading her way on the highway.  She became very scared and tried to exit her vehicle.  Finding the door difficult to open she began to panic.  After a brief struggle, she was able to open her door and leave the car.

Psychological Upset Due to ICBC Injury

As a consequence of the accident, the plaintiff experienced psychological upset consisting of post-traumatic stress disorder, depression and anxiety; pain in her neck; pain in the right side of her face, including her jaw; and headaches. The Court found that the pain in the side of her face had become chronic. The Court also found that the persistent nature of the plaintiff’s symptoms and her continuing psychological upset had negatively affected the Plaintiff’s ability to concentrate, recall recent matters and to perform physical work. It found that these factors had left the Plaintiff more easily fatigued and that her stamina for physical and social activity was diminished.  The Court found that she was less engaged with her family and friends and was forgetful at work as a result of her injuries.

Turning to the matter of damages, Mr. Justice Rogers said the following:

[32]         Turning to the plaintiff’s injuries, the overall weight of the evidence paints a clear picture: before the traffic accident the plaintiff had some depression and she was sometimes anxious. The breakdown of her marriage and the emotional upheaval and fiscal uncertainty that flowed from that breakdown fuelled her depression and anxiety. Both conditions were sufficiently active as to prompt her to obtain medical attention. The plaintiff’s depression and anxiety were, therefore, present and active maladies before the accident. The plaintiff did not, however, suffer from post-traumatic stress disorder or from pain in her neck, jaw and face, and the plaintiff did not suffer from migraine or neuralgic headaches. The plaintiff was not fatigued and her ability to function in everyday life was not limited in any significant way. After the accident the plaintiff does now, and will in the future continue to, suffer from myofascial pain in her face and jaw. She does, and will continue to, suffer from periodic migraine and neuralgic headaches. Her neck will be sore after physical activity. She will be fatigued and socially withdrawn. These changes in her life have deepened her depression and made her more susceptible to anxiety.
[33]         Where a plaintiff suffered from a malady before sustaining a compensable injury, or where the evidence shows that there is a measurable risk that a plaintiff’s pre-existing condition will become symptomatic, the court must decrease the defendant’s liability for damages to account for the pre-existing condition: Athey v. Leonati, [1996] 3 S.C.R. 458. In this case, the plaintiff’s depression and anxiety were active shortly before the accident. I find it likely that, even if the accident had not happened, the plaintiff would have continued to suffer from a degree of depression and anxiety for some years to come. I find that because those conditions were not disabling before the accident, there was no measurable risk that they would have disabled the plaintiff absent the accident. They would, however, have required medication and the plaintiff would have benefited from some psychological counselling for depression and anxiety.
[34]         That said, the plaintiff’s pain, headaches and post-traumatic stress disorder were not features of her life before the accident and there was no measurable risk that, absent the accident, they would have become features of her life. Likewise, the plaintiff’s difficulties with memory and concentration were not a problem before the accident. Although the plaintiff argued that these latter problems stemmed from a minor traumatic brain injury, I find that that they are, in fact, a product of the effect on her mentation of pain, depression and anxiety.
[35]         On an overall assessment of the whole body of the evidence at trial, I am satisfied that the plaintiff’s claim for non-pecuniary damages should be reduced by a relatively modest amount in order to accurately reflect her pre-existing emotional condition. I fix that reduction at 10 percent of the total.
[36]         I find that were it not for her pre-existing condition, I would have fixed the plaintiff’s non-pecuniary damages at $90,000. I find that after subtracting the pre-existing condition, the plaintiff is entitled to judgment for general damages of $81,000.

With respect to the Plaintiff’s claim for loss of future earning capacity, Mr. Justice Rogers held as follows:

[42]         Given my findings that the plaintiff’s myofascial pain, her headaches, and her neck pain are permanent, and given that the plaintiff’s opportunity to work in the health care have been negatively affected by those injuries, it follows that the plaintiff’s ability to take advantage of all employment opportunities that would otherwise be open to her has been diminished. The plaintiff is entitled to compensation for that reduction of her earning capacity.
[43]         This award is not amenable to calculation according to one formula or another. The plaintiff is still able to work; her loss lies in a restriction of her ability to fully participate in her work. I find that the plaintiff’s reduction of earning capacity merits an award of $60,000.

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