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$65,000 Awarded for Chronic Pain: Neck, Shoulders, Low Back & Headaches in ICBC Injury Case

In the recently published case of Azuma-Dao v. MKA Leasing Ltd., 2012 BCSC 10, Madam Justice Humphries awarded $65,000 in non-pecuniary damages (pain & suffering) following a three day trial to a plaintiff injured in a motor vehicle accident in September 2008.


As a result of the accident the plaintiff suffered from chronic pain in her neck and shoulders.  She had sharp pain in her left shoulder and tingling down to her fingers.  Her lower back felt numb, and she experienced sharp pains with some activities.  The plaintiff also had daily headaches and difficulty sleeping.  As a result of these injuries, the plaintiff decided to retrain to be a teacher, given that her job helping disabled adults was physically demanding.


In awarding the above amount for pain and suffering, Justice Humphries said the following:


[80]         The plaintiff’s life has changed substantially as a result of the accident, and she suffers chronic pain.  From a fit, very active person, she has become withdrawn, moody, and deconditioned.  Her friends and her husband find her to be a different person, no longer active and happy go lucky.  She endures pain every day, but she works very hard at her exercises.  Her work with disabled adults was very important to her and required a fit strong body, which she no longer has.  Despite her withdrawal, she maintains a social life, but the activities she and her friends do are now more sedentary.


[81]         I set her non-pecuniary damages at $65,000.  I would not reduce this amount for failure to mitigate.  There is an insufficient evidentiary basis to conclude that her decision not to take the KARP program lessened her pain, suffering, and loss of amenities.  While there is evidence to support her ability to return to work at CLS, at least part time, that would likely entail accommodations.  In other words, the quality of her life would still be affected, even if she were able to perform limited functions at her previous job after taking the KARP program.


Failure to Follow Medical Advice Costs Plaintiff in ICBC Injury Case:


In the course of her treatment following the accident, two doctors recommended a program specifically directed at increasing the plaintiff’s work fitness.  The plaintiff failed to take such a program.  Justice Humphries found that this amounted to a failure to mitigate her damages.  In that regard she said the following:


[58]         The onus is on the defendants to prove that a reasonable patient, having all the information at hand that the plaintiff possessed, ought reasonably to have followed the recommended course of treatment.  Next, the extent, if any, by which the treatment would have been reduced by the treatment must be considered…


[59]         The determination of the consequences of an unreasonable refusal of treatment involves consideration of foreseeability and remoteness.  The trier of fact must consider what damages were avoidable by assuming the plaintiff agreed to an alternative course which has not yet occurred, take into account any substantial possibility of failure, and the amount by which full compensation would be discounted would represent avoidable loss…


[60]         There is no dispute that exercise and therapy are useful for injuries of the type sustained by Ms. Azuma-Dao, and she has attended physiotherapy regularly.  However, two doctors recommended a program that was specifically directed at increasing her work fitness for her particular job, in consultation with her employer and her doctor.  I conclude that Ms. Azuma-Dao should reasonably have investigated whether funding was available for the KARP (or another intensive work fitness) program, as recommended by Dr. Frank and Dr. Vondette, and should have taken the treatment.  To refuse to follow medical advice, quit her job very hastily to retrain as a teacher, and rely only on physiotherapy is a failure to mitigate.


[61]         … Ms. Azuma-Dao should not be subject to an inappropriate double discount, where the factors to be considered are the same.  I will consider this further when assessing past loss of income.
The court held that the plaintiff’s damages for past wage loss should be reduced by 30% as a result of her failure to take the recommended work fitness program:


[73]         However, that wage loss must be adjusted for the substantial possibility that she would have returned to work at some point, at least part time with accommodations, had she followed her doctor’s advice to take a work fitness program and not to quit her job.  Since she was working at the PNE during the summer of 2009 up to the end of November 2009, and was able to do shifts at CLS by that time, the likelihood of her return to work at least part time is very high.  If she had followed her doctor’s advice and taken the work fitness program in the spring of 2009, the substantial possibility of return to work at CLS after her job at the PNE ended in November is even higher.  Ms. Azuma-Dao chose not to work and to go back to school, but I conclude that she had a high likelihood of being able to return to work, at least part time, at CLS during that period, continuing to the date of trial.  I therefore reduce her wage loss for that period by 30%.


[74]         Therefore, she is entitled to full compensation for wage loss up to the end of May 2009 by which time she should have completed the intensive work fitness program recommended by her doctor, a recommendation confirmed by Dr. Vondette.  Thereafter she is entitled to wage loss to the date of trial, reduced by 30%.  She was working full time at the PNE from June to November, and obviously that amount, along with other amounts she earned during the entire time, are to be deducted from the award.


However, as noted above, the court decided that non-pecuniary damages should not be reduced.


Loss of Future Earning Capacity in ICBC Injury Case


The court held that the plaintiff demonstrated a real and substantial possibility of income loss in the future as a result of her injuries and awarded her $60,000.  The court said the following in respect of that award:


[83]         Although now trained as a teacher, Ms. Azuma-Dao is having difficulty getting employment and must first go through a period of substitute teaching before she can hope for a full time position.  She has physical limitations as a result of the accident that preclude her from working at jobs with heavy physical requirements.  This is not a situation where the plaintiff would not have worked at physical jobs in any event.  She was extremely fit before the accident and well suited for her job at CLS which had considerable physical demands.  She was able to work two jobs at once for several months of the year, enjoyed both of them and was seen by both employers as a valuable employee.


[84]         I am satisfied that the plaintiff has demonstrated a real and substantial possibility of income loss in the future as a result of the injuries suffered in the accident…This is not trivial loss for her.  She relied on her physical abilities in her jobs and enjoyed her work very much.  However, she has now trained for a new career that will likely result in a higher salary than her previous job at CLS, assuming she is able to get and sustain employment as a teacher.


[85]         Considering all of these factors, I set her the loss of the capital asset of her employability at $60,000.  I would not reduce this amount for failure to mitigate for the same reasons as set out above in paragraph 81.


Award for Half of Plaintiff’s Tuition in ICBC Injury Case


The court awarded half of the plaintiff’s costs for attending SFU to retrain as a teacher.  Justice Humphries said the following regarding this aspect of the plaintiff’s case:


[91]         Ms. Azuma-Dao has received wage loss for the period during which she was attending school, adjusted for contingencies and the failure to mitigate.  The amount spent on tuition during that period has enabled her to embark on another more lucrative career.  Although I have found she could have returned to work at least on a part time basis with accommodations, I am satisfied that there is a substantial possibility that Ms. Azuma-Dao would have had to retrain in any event because of the accident.  Even if she could have continued at CLS in a limited capacity with accommodations, the joy she took in that job was greatly curtailed by her inability to do all aspects of it.


[92]         On the other hand, there is a substantial possibility that she would have wished to retrain at some point in the future, even if the accident had not occurred.  This is based on her earlier interest in teaching and the promptness of her decision to take education prerequisite courses following the accident…There is also a possibility that she would have recovered fully and returned to work at CLS.


[93]         I will allow the costs of attending SFU ($9,288.40 for tuition and $513.45 for books) reduced by 50% to allow for those contingencies.  It is worth noting that the defendants have the advantage of the initiative shown by Ms. Azuma-Dao in incurring the costs of retraining because that decision reduced her risk of lost income in the future.


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