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$70,000 Awarded for Chronic Pain in Neck, Shoulders & Back in ICBC Case

In the recently reported case of Kardum v. Asadi-Moghadam, 2011 BCSC 1566, Mr. Justice Armstrong awarded $70,000 in damages for pain suffering and loss of enjoyment of life to a plaintiff injured in motor vehicle accidents in June 2007 and October 2009.  As a result of the accidents the plaintiff developed chronic pain in his neck, shoulder and upper back region.  He also suffered from headaches and disrupted sleep.  The court found that the plaintiff would likely have pain and discomfort “for the balance of his life”.


Chronic Pain in Neck, Shoulders, and Back in ICBC Injury Case


In making his award of general damages to the plaintiff, Justice Armstrong said the following:


[168]     Before the accident Mr. Kardum was a physically active and highly motivated professional facing the prospect of professional success in architecture. He had worked hard and diligently to earn the high regard of his employer; he was successful in that endeavour and became an associate of the firm. The accident and resulting injuries have imposed an ongoing level of physical discomfort on Mr. Kardum which I accept based, on the evidence of Dr. Caillier and Dr. Shuckett, will be permanent. I accept that he will likely have some improvement in the symptoms and that he may achieve even better recovery if he follows the recommendations to ergonomically adjust his workstation, attend to better sleep hygiene, and pursue a kinesiology-based exercise program.


[169]     His current symptoms will have a deleterious impact for the balance of his life. Mr. Kardum’s life has been affected in many ways including a set back in his professional pursuits, limitations on his recreational activities such as soccer, sleep disturbance, irritability, and energy loss. His social relationships, work capacity, and lifestyle have been significantly impacted and the prognosis of improvement is bleak.


[173]     I have concluded that the nature of Mr. Kardum’s injuries coupled with the duration of symptoms that are likely to be permanent will diminish his lifestyle and affect his social relationships. There may be improvement but there will be a permanent reduction in his enjoyment of a lifestyle that was, before the accidents, unbounded by any physical limitations. He has been resilient to the point of maintaining an active physical exercise routine but will continue to have the nagging discomfort and inconvenience of the symptoms he now complains about. He is a young man and will have these symptoms over many years; his will be a different life because of the accident.


[174]     I conclude that Mr. Kardum is entitled to non-pecuniary damages of $70,000.


Loss of Future Earning Capacity in ICBC Injury Case

Justice Armstrong also made an award of $90,000 for loss of earning capacity.  He said the following in respect of that award:


[153]     The fatigue and distraction brought about by chronic pain, headaches and sleep interruption are likely to reduce his durability at work. These features of his ongoing condition will likely interfere with his performance and prospects if he seeks a change in his employment.


[154]     Although I conclude that Mr. Kardum will likely be away from his job and be deprived of some income in the future because of the injuries suffered in this accident, I am not satisfied that a one-day absence is anything but an arbitrary attempt on his part to find a schedule that works for him. The evidence to justify a one day per week mathematical calculation of his loss is absent. Mr. Kardum argued that the net present value of one day’s income per year ($13,260) for 27 years was $261,036. He argues this does not consider any amounts for lost bonuses, overtime, promotions, or raises.


[155]     I am satisfied that Mr. Kardum is a focused and dedicated employee who will be able to make some adjustments in his work schedule to satisfy his employer’s requirements. Nonetheless he will likely lose some income and his future prospects are somewhat dimmer than they would have been but for these accidents. He has suffered some impairment of his earning capacity and is less capable overall from earning income from all types of employment available to an architect. Accordingly, taking into account these contingencies, Mr. Kardum is entitled to damages assessed at $90,000.


Apportionment between Defendants in ICBC Injury Case

The court found that the injuries sustained in the second accident could not be distinguished from the injuries “extant at that time”.  Accordingly, Justice Armstrong applied the Court of Appeal decision in Bradley v. Groves, 2010 BCCA 361 in finding that the award of damages would be paid by the defendants “jointly and severally”.

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