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$45,000 Awarded for Persistent Neck and Back Pain in ICBC Injury Case

In the recently reported case of Parker v. Lemon, 2012 BCSC 27, Mr. Justice Savage awarded $45,000 in non-pecuniary damages (pain & suffering) following a five day trial to a plaintiff injured in two motor vehicle accidents in December 2008 and January 2009. The plaintiff sustained injuries to her neck, back and shoulder and suffered from myofascial pain and headaches. The plaintiff had a variety of medical conditions that pre-dated the accidents, including irritable bowel syndrome and diabetes. Prior to the accidents, the plaintiff had worked as a personal care aide. Due to ongoing pain, the plaintiff quit her job in 2011.


Non-Pecuniary Damages in ICBC Injury Case 


At trial the plaintiff sought damages totalling nearly $180,000. ICBC’s lawyers argued that the plaintiff’s total damages were less than $40,000. In the result, the Plaintiff was awarded a total of $73,000.


With regards to the non-pecuniary damages, Justice Savage remarked:


[28] Such awards will vary in each case to meet specific circumstances. A specific circumstance here is the plaintiff’s overall health condition. That said, I accept that her injuries have significantly impacted her enjoyment of life, including her work, family and social life.


Loss of Future Earning Capacity in ICBC Injury Case


The plaintiff sought $80,000 in damages for loss of her ability to earn income. While not awarding her that amount, Justice Savage did find that the evidence warranted an award for future income loss. In awarding the plaintiff $25,000 he said the following:


[43] In my opinion the plaintiff has met the initial burden of proof. That is, she has shown that, based on her evidence and the medical opinions, there is a real and substantial possibility of a future event leading to an income loss. That is, the plaintiff is prevented from embarking on full-time employment as a personal care aide, and like employment. Although she had not achieved the status of full-time employment before for a variety of reasons, and no actual income loss is shown, she is now precluded from it.


[44] The plaintiff voluntarily left her employment in 2011. There is some evidence that she could have been accommodated if she had requested accommodation, although she still would, in my opinion, have been required to work in pain. She is considering retraining. One option is to retrain in a former occupation. That would require some months’ advance notice, attendance at courses, and accommodation for her young son. I do not think that once retraining is achieved there would be any significant ongoing income loss, as the plaintiff was employed in an entry-level position in her former occupation, earning $14 per hour.


[45] In my view the best way to account for the loss in these circumstances is to use the earnings approach to provide for an amount equivalent to what it would cost her in regular employment income over a period of training and job-seeking, and associated costs. Any amount awarded under this head is subject to contingencies, which include the plaintiff’s health from other known and unrelated conditions. Doing the best I can with the evidence I have, I set damages under this head at $25,000.


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