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$90,000 Awarded for Vestibular Injury Causing Visual Vestibular Mismatch in ICBC Injury Case

In the recently reported case of Moukhine v. Collins, 2010 BCSC 118 Madame Justice Watchuk awarded $90,000 in non-pecuniary damages (pain & suffering) following a fifteen day trial to a plaintiff who was injured in a motor vehicle accident in April 2007 in Burnaby B.C.


Visual Vestibular Mismatch in ICBC Injury Case


The plaintiff in the case was a 53 year old computer programmer. He was stopped at a t-intersection at Nelson and Marine waiting for the traffic to clear to make a left-hand turn from Nelson onto Marine way. He was leaning forward and looking left when he saw a gap in the traffic and started to move his foot from the brake to the gas. At that moment he was struck from the rear by a Ford Ranger pickup truck operated by the defendant.


The court found that the plaintiff sustained a vestibular injury in the accident, and accepted the evidence of the plaintiff’s treating specialist, Dr. Longridge, that the plaintiff was suffering from a condition called “visual vestibular mismatch” and that it was unlikely that there would be further significant improvements to his condition or symptoms. The court defined this condition as follows:


VVM or Visual Vestibular Mismatch occurs when dizzy symptoms are induced by activities around a person such as a striped carpet or activity in shopping malls. It is accompanied by dizziness, imbalance and nausea. One of the instigators is the use of a computer. Visually induced vertigo and visually induced dizziness are new terms being used internationally.


In making the award for non-pecuniary damages, Justice Watchuk said the following:


[227] As has been described above, this injury has had a significant effect on Mr. Moukhine. It has resulted in continuing dizziness, primarily when he works on the computer. He is now unable to work full-time in his professional capacity as a computer programmer. He is well-educated; he has been successful and accomplished at his job and was esteemed by his colleagues. He worked at a job he loved.


[228] Mr. Moukhine is no longer able to participate in many outdoor activities that formerly formed an important part of his life, and he is not now the cheerful, outgoing and active person that he was before the accident.


[229] The evidence of his wife, daughter and friends, Ms. Kapoustina and Mr. Khrissanov, was clear in describing the effect on him and his loss of enjoyment of life. Mr. Moukhine’s evidence was understated and demonstrated an unwillingness to complain or dwell on his limitations and inabilities. He could accurately be described as stoic.


[230] I conclude that this motor vehicle accident has had very serious consequences for Mr. Moukhine. There was a total disability for six months. The soft tissue injuries and headaches were mostly resolved by June 2010. He is not yet fully recovered and is unlikely to recover from the Visual Vestibular Mismatch.


[231] At the present time the symptoms of headaches, nausea, balance problems and dizziness recur if he works too long. Mr. Moukhine still works from home. He is able to work on a schedule that incorporates 60 to 90 minutes of work, a two hour rest, another 45 to 60 minutes of work, then another rest, followed by another 30 to 45 minutes of work for a total of 2.25 to 3.25 hours per day. He finds this restricted ability to work frustrating.


Loss of Earning Capacity in ICBC Injury Case:


The court found that given the plaintiff’s ongoing medical condition, there was a substantial possibility that he would continue to experience income loss indefinitely into the future. Applying a 50% loss rate to age 65, Justice Watchuk assessed the plaintiff’s damages at $335,000.

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