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$50,000 Awarded Shoulder Soft Tissue Injury in ICBC Injury Case

In the recently reported case of Akari v. Guillard, 2012 BCSC 165, Mr. Justice Williams awarded a plaintiff $50,000 in non-pecuniary damages (pain & suffering) after a five day trial for injuries sustained in a motor vehicle accident in February 2007. The plaintiff sustained injuries to the right side of her neck, upper and mid back and to her right shoulder. She also experienced occasional headaches.


 Soft Tissue Injury in ICBC Injury Case


Justice Williams found that the plaintiff’s headache condition resolved within a short time after the accident (within a matter of months). The plaintiff’s neck and back discomfort had substantially resolved by the time of trial and within three years of the date of the accident. The plaintiff’s shoulder continued to be painful, but significantly lessened since the accident. The court noted that the plaintiff’s shoulder pain was intermittent and affected the plaintiff’s activities. The court found that the plaintiff’s shoulder injury was muscular or musculoligamentous in nature. In awarding the plaintiff the above amount he said the following:


[30] In the present case, the headaches resolved quite quickly; the neck and back pain resolved, for the most part, within a reasonable time. The shoulder pain has, however, persisted and continues to cause discomfort. Although not certain, it seems reasonable to expect that this may not fully resolve. She may continue to experience that discomfort indefinitely. That is a relevant consideration.


[31] In the course of trial, there was evidence which suggested that the harm sustained by the plaintiff had been especially significant because the shoulder injury had impacted her ability to throw a ball, and that she had been precluded from pursuing a pastime for which she had great passion and in which she was especially gifted: softball. In fact, certain of the medical reports indicated that she either had a scholarship or was a serious candidate to be awarded one. In fact, that seems to have been a misunderstanding. Some of the witnesses who testified for the plaintiff painted a picture suggesting she was a young woman who was quite highly skilled and to whom playing ball was a very important focus. With respect, I find myself somewhat restrained in accepting that representation in all its fullness. It is clear that her family, her parents particularly, consider that to have been important to her, and I accept that it was an enjoyable pastime for her. However, to be fair, I am driven to conclude that the plaintiff was a quite conventional young woman who had participated in soccer and then quit the year prior to the accident. As for softball, she played in a recreational way at the house league level and, for one year, at the lower level of the so-called “rec” league. She apparently enjoyed her involvement, but I am disinclined to accept that softball was an all-consuming passion or that she was deprived of a pastime which was especially central to her. Nevertheless, the injury seems to have taken away her ability to participate in sports which involve throwing, and that is something that she did.


[32] In all the circumstances, I am influenced by the fact that the effect of this injury does cause the plaintiff discomfort of a discernible sort and that occurs not infrequently, both at work and while doing other things.


Loss of Future Earning Capacity in ICBC Injury Case:


The court also awarded the plaintiff $35,000 for a loss of earning capacity. Justice Williams said the following in making this award:


[41] The plaintiff’s case as it relates to this claim is modest. While she may well hope to pursue the vocation of LPN, the evidence does not satisfy me that the effect of her injury will meaningfully impact her pursuit of that career. It has not been proven that any functional capacity limitations she has as a consequence of the defendants’ conduct will materially affect that. Other issues, such as the fact that her academic record would require upgrading, and whether she is otherwise suited to such a program, are relevant considerations, but I do not propose to dwell upon them here. There is certainly no reason to conclude that she would be foreclosed from pursuing that vocational path.


[42] The plaintiff has not proven that the injury has specifically affected her in a way that any particular occupation choice that would otherwise have been available has now been foreclosed.

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