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$230,000 Awarded in ICBC Case to Plaintiff Severely Injured in Motorcycle Accident

In the recently reported case of Jarmson v. Jacobsen, 2012 BCSC 64, Mr. Justice Meiklem awarded a plaintiff non-pecuniary damages (pain and suffering) of $230,000 after a ten day trial to a plaintiff who suffered multiple injuries, including a traumatic brain injury, as the result of a motorcycle accident on highway 6 near Edgewood B.C in July 2008.
With respect to the long-term aspects of the plaintiff’s injuries the court said the following:
[79] The formerly charismatic, gregarious, humorous, happy Mr. Jarmson is now less gregarious, not as humorous. He has become egocentric, and now has an adjustment disorder, depression and altered body image. He has chronic pain in his right knee, right foot and right shoulder. Notwithstanding his characteristic stoic nature, he is impacted daily by fatigue, both mental and physical, and remains prone to emotional meltdowns.
[86] I will not burden the reader with a case by case analysis, but of particular interest is the Moskaleva case, where appropriate deference was given to a jury award of $245,000, although the Court of Appeal commented that it was “undoubtedly high and may not have been one this court would make”.
[87] The female plaintiff in Moskaleva was somewhat younger (53 at trial) than Mr. Jarmson, but the residual effects of her brain injury were quite similar and, like Mr. Jarmson, she was foreclosed by her brain injury from a professional career. However, her physical injuries were less significant than Mr. Jarmson’s.
[88] I find that the fair, reasonable, and appropriate award to compensate Mr. Jarmson for his non-pecuniary losses is $230,000.
“Gold-Plated” Cost of Future Care Report Criticized:
The court criticized the expert witness called by the plaintiff with respect to his cost of future care award. The plaintiff had claimed $858,742 on the basis of recommendations for care and equipment and services. Justice Meiklem found that the many of the items proposed by the plaintiff’s expert were “not medically supported by any evidence at trial”. As a result they were rejected. Justice Meiklem said the following regarding the shortfalls of the report:
[117] Ms. Landy [the plaintiff’s expert] did rely on facts, opinions and assumptions not in evidence, and in some instances her costing displayed a discomforting lack of care. An example of the latter is her costing of Dragon Naturally Speaking voice recognition software and instruction at $2,500 when that software and an instructional disc are readily available for $99, as advertized on the distributor’s website.
[118] Ms. Landy acknowledged during cross-examination that she would defer to the contrary views of Dr. Travlos or other doctors in respect of some of her recommendations, such as recommending laser eye surgery to avoid the problem of dropping or damaging contact lenses due to hand tremors which Dr. Travlos cannot attribute to his injuries.
[119] Ms. Landy’s Life Care Plan is not just a Cadillac; it is a gold-plated one, which goes far beyond what is reasonable. For example, her recommendation of one-to-one rehabilitation support for 10 hours weekly, (essentially to replicate what his wife, who has been his constant workout partner, has always done) is unsupported by medical opinions other than her own, and would cost $21,600 per year. The present value of that expense alone is over $338,000. With all its shortcomings, I cannot accord Ms. Landy’s recommendations very much weight in my assessment, other than to provide a checklist for comparison and thoroughness.
The court relied on the report of the Defendant’s expert, an occupational therapist, and said the following respecting her opinion:
[121] I was very impressed with Ms. Phillips’ objectivity and thoroughness. Although a defendant’s expert in this case, she has frequently worked for plaintiff’s counsel. She did not come across as trying to minimize Mr. Jarmson’s disability, and seemed appropriately concerned that the necessary components of his future care were considered and provided. Her report provides a detailed discussion of various items and the reasons why she agrees or disagrees with the comparable recommendations of Ms. Landy. I accept her recommendations nearly in their entirety and consider them fair and generally sufficient, with the exceptions I will later mention.
In the result, the court awarded the plaintiff $110,000 for his cost of future care.

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