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$70,000 Awarded for Grade II Whiplash to Neck and Upper Back with Persistent Pain in ICBC Case

In the recently published case of Courtney v. Hutchinson, 2012 BCSC 188, Madam Justice Power awarded $70,000 in non-pecuniary damages after a three day trial to a plaintiff injured in a motor vehicle accident on 11 November 2008. The plaintiff’s vehicle was rear ended by the defendant’s vehicle as she was stopped at a three way intersection on 3rd Ave. and Bute St. in Port Alberni. Liability for the accident was admitted. The plaintiff was forty-eight years old at the time of the accident and had a physically demanding job in the logging industry operating heavy machinery and a part-time business doing home renovations to supplement his income.


The court found that the plaintiff was healthy before the motor vehicle accident, but an MRI taken after the accident showed degenerative disc disease and osteoarthritis as an underlying problem. A report of the plaintiff’s family doctor was tendered at trial in which the plaintiff was diagnosed as having sustained a cervical interspinous ligament strain and a thoraco-lumbar interspinous ligament strain. The prognosis was for intermitted ongoing symptoms and discomfort. A report from a physiatrist tendered at trial indicated that the plaintiff sustained a Grade II whiplash associated disorder to his cervical spine and upper back with persistent daily neck pain greater on the left that right side and headaches. The doctor stated that the plaintiff’s degenerative disc disease was “asymptomatic” prior to the accident and not the cause of the plaintiff’s ongoing problems.


In making the above award, Justice Power said the following:


[37] Mr. Courtney continues to experience pain in his neck, particular with movements associated with tasks that require neck extension such as shoulder checking using the Bowflex and drywalling. Such pain is expected to be ongoing and permanent.


Disability in ICBC Accident Case


[38] As a result of his injuries and, Mr. Courtney is limited in his ability to perform a variety of simple tasks involving extension of his neck without pain.


Emotional Suffering in ICBC Accident Case


[39]The impact of Mr. Courtney’s ongoing symptoms on his ability to engage in various work-related activities and those recreational pursuits that he enjoyed prior to the collision clearly upsets him. Despite presenting as a quiet and stoic individual, Mr. Courtney was visibly emotional when asked about the effects his injuries and ongoing symptoms on his family. I conclude from his reaction that the impact of this loss has been significant.


Loss or Impairment of Life in ICBC Accident Case


[40] Mr. Courtney no longer leads the life that he did prior to the collision. Before, he was an active individual capable of doing various work-related, home renovation or maintenance and recreational activities. The evidence satisfies me that not only could he perform them, but he took pleasure in them as well. His ongoing injuries prevent him from engaging in many of these activities at all or at the same level he did prior to the collision.


Loss of Lifestyle in ICBC Accident Case


[43] Prior to the collision, Mr. Courtney was an active, hard-working and physical person. As a result of his injuries and ongoing symptoms resulting from the collision, he has had to reduce his participation in or avoid altogether many of the physical tasks and activities that he previously performed and enjoyed.


Loss of Earning Capacity in ICBC Accident Case


Justice Power also awarded $30,000 for loss of earning capacity. The court factored in a number of key negative contingencies in coming to its final assessment. With respect to this assessment, Justice Power said the following:


[52] I am satisfied based on this evidence that there is a real and substantial possibility that the neck pain and association limitations with range of movement will result in a pecuniary loss to Mr. Courtney regardless of whether he maintains his job as a log loader or returns to his work as a carpenter. He may not be able to accept a position as a feller-buncher if one is offered because of the demands of that position. He may have to hire out certain constructions activities that require neck extension such as dry walling and roofing and ceiling work.


[53] There are a number of negative contingencies that have to be considered in respect of the future income loss. The nature of the logging industry and of the work available have to be considered as reflected in the plaintiff’s work history. Similarly, there are uncertainties surrounding the work available for Mr. Courtney’s construction work.


[54] The plaintiff has submitted a calculation based on a $4 difference in wages between a log loader and a feller-buncher which results in a calculation of $68,390. However, that calculation is generous since the current wage difference is approximately $2.75 per hour although the plaintiff argues that based on his experience the plaintiff could negotiate a higher wage.

[55]The plaintiff claims a future loss of $50,000 based on a capital asset approach and provides the calculation simply to provide some guidance to the court.

[56] In my view the evidence and the negative contingencies support a lesser amount than the one claimed by the plaintiff. In the circumstances, I am of the view that $30,000 is appropriate award under this head of damage.

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