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$25,000 Awarded for Soft Tissue Injuries Causing Pain in Shoulder, Back & Neck in ICBC Case

In the recently published case of Hussain v. Cho, 2012 BCSC 194, Mr. Justice Jenkins awarded $25,000 in non-pecuniary damages (pain & suffering) following at two day trial to a plaintiff injured in a motor vehicle accident on 24 August 2008 at the intersection of Kingsway and Beatrice St. in Vancouver, B.C. At the time of the accident, the plaintiff was a passenger riding in a Jeep. The only issue at trial was the amount for non-pecuniary damages.


Shoulder and Back Pain in ICBC Injury Case

Following the accident the plaintiff developed a headaches, and pain in his neck and back. The court found that a year after the accident, the plaintiff’s headaches were less frequent. However, the plaintiff still suffered some pain in his neck. His back pain was a little better and his shoulder continued to be symptomatic. The court found that the plaintiff had sustained a soft tissue injury in the accident and said the following in that regard:

[21] Based on the above and all of the evidence, I find Ms. Hussain’s injuries arising from the motor vehicle accident of August 24, 2008 consisted of soft tissue injuries to the left erector spinae and thoracic paraspinals evidenced by pain in her mid and lower back, shoulder and neck and as well as headaches. Although Dr. Menzies did state that Ms. Hussain was “probably substantially recovered” from the injuries caused by that motor vehicle accident within one year, she did continue to suffer some pain and headaches for more than a year after the accident. Also, Ms. Hussain’s injuries from the February 2011 “slip and fall” were a “little” worse due to the injuries suffered August 24, 2008.


Damages in ICBC Injury Case


In making the above-noted award , Justice Jenkins said the following:


[22] Plaintiff’s counsel claims non-pecuniary damages in the range of $30,000 to $40,000. Authorities relied upon by counsel for the defendants point to a range of $5,000 to $11,000. The gap between the two sets of authorities is mainly explained by the duration of the pain and suffering experienced by the plaintiffs in each case.

[26]Considering all of the above findings and authorities, I find the plaintiff to be entitled to a total of $25,000 in non-pecuniary damages which includes $5,000 for diminishment of homemaking capacity. Homemaking was a very significant activity for Ms. Hussain before the accident and it is clear that she struggled at that activity for some time thereafter.

[27] The award of $5,000 for diminishment of homemaking capacity takes into consideration the recent comments of Madam Justice Kirkpatrick in O’Connell v. Yung, 2012 BCCA 57 [O’Connell]. In O’Connell, Kirkpatrick J.A. reiterated the distinction between awards for loss of homemaking capacity and awards for the cost of future care. At para. 67, Kirkpatrick J.A. characterized an award given to a plaintiff for loss of homemaking capacity in the following manner:


[67] … it is the loss of a capacity – an asset – that is compensated. Accordingly, because the award reflects the loss of a personal capacity, it is not dependent upon whether replacement housekeeping costs are actually incurred.


[28] The Court in O’Connell distinguished awards for loss of homemaking capacity from awards for the cost of future care, stating at para. 67 that “[u]nlike loss of housekeeping capacity awards, damages for the cost of future care are directly related to the expenses that may reasonably be expected to be required”. Thus, the Court in O’Connell held at para. 68 that the trial judge erred in “concluding that future care costs are payable whether or not they may be incurred in the future.”


[29] The Court in O’Connell also considered the decisions in Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d) 178 (C.A.), and McTavish v. MacGillivray, 2000 BCCA 164, 74 B.C.L.R. (3d) 281 [McTavish]. The Court in O’Connell referred to the following statement of Huddart J.A. in McTavish:


[43] As I have noted, the majority in Kroeker quite clearly decided that a reasonable award for the loss of the capacity to do housework was appropriate whether that loss occurred before or after trial. It was, in my view, equally clear that it mattered not whether replacement services had been or would be hired.


[30] I find the above statement in McTavish to be of assistance in the case at bar, as the plaintiff’s difficulties pertaining to homemaking caused by the injuries she sustained in the accident occurred before trial.

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