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Court Awards $100,000 in Non-pecuniary Damages for Permanent Low Back Pain in ICBC Case

In the recently published case of Crane v. Lee, 2011 BCSC 898, Mr. Justice Smith awarded a plaintiff $100,000 in non-pecuniary damages for her personal injury. The plaintiff sustained a low back injury, including a disc herniation, as a result of the an accident in which the defendant ran a stop sign. Six years after the accident, the plaintiff was left with daily low back pain that had significantly impacted her life. With respect to the award of general damages the Court said the following:

[45] The injury the plaintiff suffered has had a significant impact on her enjoyment of life. She has back pain on a daily basis, fluctuating according to her activities. She has lost what was formerly a very active lifestyle, giving up some activities that she formerly enjoyed, while continuing some others on a reduced level, accepting the trade-off of increased pain. The only medical evidence before me is that this condition is likely to be permanent. She also suffers severe anxiety while driving, particularly in situations similar to those that gave rise to the accident, although there is no evidence that this condition is necessarily permanent.

[49] Taking into account the effect of the plaintiff’s injuries on her lifestyle, the permanent nature of her pain and the psychological impact, including her driving anxiety, and considering the cases cited, I assess the plaintiff’s non-pecuniary damages at $100,000.

How Much Medical Treatment is Required?

Pointing to the fact that the plaintiff sought very little medical care for her injuries, ICBC’s lawyer argued that she was not as injured as she claimed to be. The Court disagreed. On that point, Mr. Justice Smith said the following:

…While I understand the plaintiff not returning to Dr. King and not initially seeking other medical advice for treatment of an ongoing condition, I am troubled by the fact that she waited so long before making her new doctor aware of that condition and its history.

[28] However, that is only one factor to be weighed in the Court’s overall assessment of the plaintiff’s credibility. The plaintiff said she did not seek more medical attention because she did not think there was anything doctors could offer her. That was not an unreasonable position, given her prior experience with a back injury. Dr. Field testified that he did not believe further visits to him had been necessary.
[29] I found the plaintiff to be a very forthright and credible witness, whose evidence was unshaken by good, vigorous cross-examination. Her evidence of the difficulties and limitations she now experiences was supported and confirmed by the evidence of her friend, Ms. Afele. For what it is worth, I also observed the plaintiff to be in apparent discomfort in the witness box, changing between standing and sitting positions.

The Court also awarded the plaintiff $70,000 for loss of earning capacity. While the evidence showed that the plaintiff’s income had remained at generally the same level as before the accident, it found that there had been a diminution in her earning capacity. On that point the Court said the following:

[42] The plaintiff has changed jobs a number of times since the accident. The evidence is unclear as to whether those job changes were related to the plaintiff’s physical condition or were a normal feature of the industry in which she works. I take judicial notice of the fact that small retailers of the kind the plaintiff has worked for tend to come and go, particularly in a field involving ever-changing, high technology products. I find that the plaintiff’s pattern of relatively frequent job changes, resulting from either necessity or opportunity, is likely to continue.
[43] When that need or opportunity arises, there is a real and substantial possibility that the plaintiff’s physical limitations may limit her ability to accept some positions and make her less attractive to some employers. I make that finding based on the plaintiff’s own description of her pain and difficulties, the evidence of Dr. Field, including his opinion of the need for future surgery, and the capacity evaluation and opinion of Ms. Barr.
[44] The plaintiff is still young and the period over which she might experience income loss is a long one. On the other hand, she has so far been able to maintain her income level through a series of job changes and, for the moment at least, has been able to find a position that is more suited to her physical limitations. Weighing all these factors, I assess her lost earning capacity at $70,000, which represents roughly two years of income at her current level.
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