In the recently published case of Gilbert v. Bottle, 2011 BCSC 1389, a plaintiff injured in a motor vehicle accident was awarded $200,000 in non-pecuniary damages for injuries including a fractured clavicle, head laceration, soft tissue injuries to her neck and back and a mild traumatic brain injury with significant and permanent affects. The plaintiff was injured in March 2008 in Williams Lake, British Columbia when the intoxicated driver of a car in which she was riding as a back seat passenger lost control and crashed the vehicle. The plaintiff was not wearing a seatbelt at the time of the accident (the only available seat belt was attached to a baby seat) and was ejected through rear hatch window of the car in the course of the accident.
Contributorily Negligent in ICBC Injury Case?
In this case ICBC’s lawyer argued that the plaintiff should be found “contributorily negligent” (partly to blame) for her losses based on the fact that she had not been wearing a seatbelt at the time of the accident and for riding in a car with an intoxicated driver.
Madam Justice Dickson did not accept the argument of the defence on these points. The court declined to find that the driver was “obviously impaired” or that the plaintiff knew that the driver was impaired. The court also held that the plaintiff was under no obligation to make “inquiries into his level of sobriety” before accepting a ride from him. On that point Justice Dickson said the following:
 This is not a case in which the plaintiff and defendant were drinking together for hours before the negligent driving in question. On the contrary, although she drank beer at the Wycotte house, Ms. Gilbert was there with Mr. Bottle for only a brief period of time. The evidence does not establish that he displayed obvious signs of impairment and the surrounding circumstances did not suggest he might well be intoxicated. For example, no one mentioned that Mr. Bottle was drinking all afternoon. The single fact that the Wycotte house was a known “party house” did not make it unreasonably risky for Ms. Gilbert to accept a ride from anyone there regardless of his apparent state of sobriety or some indication that heavy drinking had recently occurred.
The court also held that there should be no finding of contributory negligence with respect to the plaintiff not wearing a seatbelt. On that point, Justice Dickson said the following:
 Despite his able submission, I cannot agree with defence counsel. In my view this case is not analogous to Thon, which concerned plaintiffs who knowingly rode in an area of a vehicle not equipped with seatbelts (having done so in the same area earlier in the day). In this case, the backseat of the Capri was equipped with two seatbelts but one was affixed to the baby seat and the other was located in the position occupied by Mr. Wycotte. Ms. Gilbert was unaware of this situation until after she got in the car and, by that time, Mr. Bottle had pulled away. Thereafter, her attempts to access the seatbelt used by the baby seat were unsuccessful, as were her attempts to persuade Mr. Bottle to stop the car and let her out.
 In a perfect world Ms. Gilbert would have noticed the baby seat and checked the availability of seatbelts in the backseat before she got into the Capri. It was dark outside, however, and I do not consider her failure in this regard to amount to a want of reasonable care for her own safety. In any event, even if she had done so, moved the baby seat and used the now available seatbelt there is no evidence that it was operating properly and I have not found her injuries would have been reduced by seat belt usage.
 If I am wrong and Ms. Gilbert failed to take reasonable care for her own safety either by failing to determine Mr. Bottle’s state of sobriety or assuming a position in the vehicle unequipped with an available seatbelt I would have found her comparative degree of fault was minimal. Mr. Bottle drove in a criminally dangerous manner, while intoxicated, and thus departed dramatically from the relevant standard of care. Ms. Gilbert, on the other hand, failed to elicit information that would have protected her from the terrible risk created by Mr. Bottle’s serious driving misconduct. In these circumstances, at most I would have assessed her contributory negligence at 5%.
It was found as a matter of fact that the plaintiff had issues with substance abuse. The defence argued that this fact should have reduced the plaintiff’s losses – arguing that, functionally, nothing had changed for the plaintiff following the accident, despite her brain injury. The court disagreed. On this point and in awarding damages to the plaintiff, Justice Dickson said the following:
 I conclude that an award of $200,000 in non-pecuniary damages is appropriate in all of the circumstances. Ms. Gilbert’s permanent loss of capacity to work and engage emotionally with others is a great loss given their central significance in her difficult life. In my view, Ms. Gilbert’s consequent need for solace is also great. Nevertheless, she is entitled to compensation for only the change to her original position. The award should not extend to her pre-existing difficulties that would have persisted or deteriorated further regardless of her injuries. In other words, the award must be fair and reasonable to both parties.
 As noted, Ms. Gilbert was often anxious, depressed and self-defeating in her habits and lifestyle before the accident. Her most serious pre-existing problem was with substance abuse and its wide-spread impact upon her life. As also noted, however, Ms. Gilbert had the capacity to abstain from consuming substances had she chosen to do so. As discussed below, I am satisfied that she likely would have made that choice in time and her substance abuse problem would eventually have resolved.
 The foregoing are all aspects of Ms. Gilbert’s original position. The $200,000 awarded for non-pecuniary damages is intended to take them all into account.
Contingencies and Loss of Future Earning Capacity in ICBC Case
In assessing damages for loss of future earning capacity the court must assess contingencies (events that may happen) to ensure that the award is fair to both parties. On this point Justice Dickson said the following:
 Relevant contingencies for consideration may be general or specific in nature. Such contingencies include, for example, the potential for improvement in health, opportunities for advancement, loss of employment and the usual chances and hazards of life. The contingency allowance will typically be modest. It should be based upon the evidence and a healthy dose of common sense: Trites; Danicek.
 The plaintiff’s pre-accident earning pattern may be a significant factor for consideration in assessing loss of future earning capacity. While not determinative, that pattern will often assist in illuminating the likelihood of hypothetical future events: Parypa v. Wickware, 1999 BCCA 88. As is the case with past loss of earning capacity, social assistance benefits must also be taken into account: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9.
The court assessed the plaintiff’s loss of earning capacity at $400,000. In coming to that valuation Justice Dickson said the following:
 As is apparent from the foregoing, this is not a case in which the value of Ms. Gilbert’s loss of future earning capacity is easily measurable. For this reason, I prefer the capital asset approach to assessment of her loss. Application of the Brown factors supports the conclusion that Ms. Gilbert has suffered a significant loss of her capital asset. She has been rendered incapable overall of earning income from employment as a result of the accident; is not marketable as a potential employee; has lost the ability to take advantage of any job opportunities that might have been open; and is not valuable to herself as a person capable of earning income.
 Ms. Gilbert’s counsel seeks an award of $400,000 for loss of future earning capacity based on the present value of an annual loss of $24,000 in earnings to age 65. I have found that her likely annual loss is slightly higher and loss period somewhat lower than what he suggests. Nevertheless, I am satisfied that, overall, a $400,000 award for loss of future earning capacity is fair and reasonable to both parties in all of the circumstances. In reaching this view, I have considered the risk that Ms. Gilbert might have continued her substance abuse habit and related low earning pattern beyond midlife. I have also allowed for the contingency that her health might improve somewhat with treatment and structured, untaxing work might become available to her.
The court awarded a further $200,000 for future care costs.
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