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$85,000 Awarded for Aggravation of Low Back Condition, Headaches and Mild Cognitive Impairment in ICBC Injury Case

In the recently published case of Drodge v. Kozak, 2011 BCSC 1316 Mr. Justice Dardi awarded a plaintiff $85,000 injuries he sustained in a motor vehicle accident in October 2006.  The plaintiff was a 62 year old who was employed as a Class 1 driving instructor at the time of the accident.    The plaintiff was injured when the vehicle in which he was travelling as a passenger was stuck by a vehicle that had crossed the center line.  As a result of the accident, the plaintiff sustained soft tissue injuries to his neck and upper back, a contusion to his right elbow, bruising and an abrasion to his forehead as well as an aggravation of his pre-existing low back symptoms.


Chronic Headaches and Mild Cognitive Impairment in ICBC Injury Case


The court found that the plaintiff’s injury resolved within a month and that the pain in his neck and upper back lasted several months but had resolved by the time of trial, some four years following the accident.


The court found that since the accident the plaintiff had been plagued with chronic headaches and some mild cognitive impairment associated with concentration and memory.


In assessing damages Mr. Justice Dardi considered the so-called “crumbling skull” doctrine.  In that regard he wrote as follows:


[140]  I have concluded that Mr. Drodge suffered from chronic low back pan before the accident, but not with the same freqency and intensity that he now experiences: I find that his symptoms were exacerbated by the accident to a moderate degree…the “crumbing skull” doctrine is pertinent as it recognizes that damages should not put the plaintiff in a better position than he was prior to the tort [accident]…
…considering Mr. Drodge’s particular circumstances, and compensating him only for the increase in the exacerbation of his low back symptoms and not for the effects of his pre-existing back condition that he would have experienced in any case, I conclude a fair and reasonable reward for non-pecuniary damages is $85,000.


Loss of Future Earning Capacity in ICBC Injury Case


The court further awarded the plaintiff $65,000 in lost earning capacity.  With respect to this award Mr. Justice Dardi said the following:

[180]     It is well-recognized that unknown contingencies and uncertain factors make it impossible to calculate future earning capacity with any precision. The evidence in this case mandates that in my assessment, I take into account the following contingencies:


(i) even if the accident had not occurred, Mr. Drodge’s pre-existing low back condition may have impacted his employability as a driving instructor. Given the medical evidence this contingency must be given more weight in assessing his future loss than the loss of earning capacity to the date of trial;


(ii) the evidence in this case also mandates that I take into account the negative contingency that Mr. Drodge, even without the accident, may not have maintained full-time employment as a driving instructor, and that he may not have continued to earn as high a wage as he was earning as of the date of the accident; and


(iii) there is a small chance that in the future Mr. Drodge’s symptoms will improve such that he will be able to resume employment.


[181]     For completeness I add that the evidence does not support a finding that absent the accident there was a realistic chance that Mr. Drodge would have derived any future income from AMI. As I stated earlier, I find that Mr. Drodge’s participation in the business has always been focussed on assisting his son, and he never realistically anticipated earning any income from the business.


[182]     Taking into account all of the evidence and the relevant negative and positive contingencies, I assess Mr. Drodge’s loss of future earning capacity from the date of trial as $65,000. I am satisfied that in all the circumstances this is a fair and reasonable award.


ICBC Expert Opinion Rejected – Doctor Not Impartial

In advancing their position that the plaintiff had not suffered a brain injury in the accident, ICBC relied on the expert evidence of Dr. Solomons, a psychiatrist.  He stated that the plaintiff had not developed any psychiatric condition or disorder as a result of the accident.  The doctor stated that the plaintiff’s psychological status was essentially normal.  However, in cross examination the doctor admitted that a person could suffer from cognitive symptoms as a result of severe headaches and agreed that severe headaches could affect someone’s mood and their ability to work.  In addition, although the doctor maintained that the plaintiff did not exhibit any cognitive difficulties during the interview, his notes showed that the plaintiff had great difficulty remembering facts and dates.   Accordingly, Mr. Justice Dardi found that Dr. Solomons was not an “impartial expert” and found his evidence “lacking the sufficient degree of objectivity to be of any real assistance.”  He placed no weight on it.

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