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$85,000 Awarded for Soft Tissue Injuries, Mild Depression & Anxiety in ICBC Accident Case

In the recently reported case of Yeung v. Dowbiggin, 2012 BCSC 206, Madame Justice Humphries awarded $85,000 in non-pecuniary damages (pain & suffering) following an eleven day trial to a plaintiff injured in four motor vehicle accidents between April 2008 and July 2011.The plaintiff argued at trial that, as a result of the accidents she had suffered soft tissue injuries and a major depressive disorder, as well as PTSD. The plaintiff had received “extensive physical treatment for her injuries” following the accident, including physiotherapy, active rehabilitation (exercise therapy), massage and chiropractic.

Judge’s Findings in ICBC Injury Case

Justice Humphries found that the evidence did not support that the plaintiff had suffered from post traumatic stress disorder. The court found that the plaintiff had suffered from a mild condition of depression and anxiety caused by the accidents. In awarding the plaintiff the amount above, Justice Humphries noted the cumulative effect of the injures:


[115] According to the evidence of Ms. Yeung, her family, and her co workers, she is not the same person she was before the accident. She is unable to do simple physical tasks if it involves her left shoulder, she has very little stamina, and has lost the general good pain-free health she enjoyed before the accident. She cannot participate in the physical activities that are important to her boyfriend. She has emotional difficulties, depression, and feels frustrated at her condition and her failure to recover fully.

[116] On the other hand, Ms. Yeung does function fairly well. She works and performs her functions in a professional manner. She drives. She socializes. She travels. In the fall of 2009, after two accidents, she met her boyfriend and built a relationship with him. By her own description, they had a very passionate relationship that seemed to abate somewhat when he moved away from his parents’ house into his own place. As well, the pain in her arm or shoulder caused some difficulty. …


[120] However, it is extremely unfortunate that Ms. Yeung has suffered a series of accidents and that her recovery has been set back regularly and incrementally as a result. Even a strong person would have difficulty dealing with a steady recurrence of similar accidents. The effect of four sequential accidents is, according to the medical experts, cumulative, and each time she begins to start to improve and return to a better level of functioning, she has been hit again, which causes a regression in her improvement with an overall cumulative effect on her life. While the physical symptoms are not extreme, they are still persisting and the psychological effect of the repeated events has seriously affected Ms. Yeung’s ability to enjoy life for a protracted period of time. While it is likely she will continue to improve if she is fortunate enough not to be involved in more accidents, she has already spent four years in a state of turmoil and physical pain.


Loss of Future Earning Capacity in ICBC Accident Case:


At the time of the first accident the plaintiff was a university student and a federal government clerk with the Ministry of Transportation.At the time of trial, the plaintiff was still a federal employee. The plaintiff claimed that she had suffered a “significant impairment to her future earning capacity” due to the accidents.In that regard, she argued that she might have obtained an MBA if the accidents had not occurred.The defendants argued that the plaintiff’s limitations did not limit her in her job and noted that her condition was expected to improve over time.


Justice Humpheries did not agree that the plaintiff would have obtained an MBA, but did make an award accounting for the lingering effects of the accidents on the plaintiff:


[143] I do not accept that Ms. Yeung has proven a substantial possibility of loss on the basis that she would have obtained an MBA but for the accidents. However, while her physical limitations may decrease with the passage of time, assuming she can remain accident free and continue to improve, Ms. Yeung’s physical limitations and emotional vulnerability arising from the series of accidents still present a substantial likelihood of some loss in the future. This is because, despite her secure job, she avoids applying for jobs that require travel or working with people and thus foregoes the wider experience from lateral moves which Mr. Deering said is useful for future advancement in the government. Thus there is a substantial possibility that she may not be able to advance as quickly as a person who has no limitations.


[144] In assessing that loss, the approach set out in Brown v. Golaiy, (1985), 26 B.C.L.R. (3d) 353 (S.C.) is appropriate. She is less capable overall from earning income from all types of employment, she is less marketable as an employee, she has lost the ability to take advantage of all job opportunities that would have been available to her but for the injuries suffered in the accidents, and she is less valuable to herself as a person capable of earning income in a competitive labour market.


[145] I set the loss of the capital asset of her earning capacity at $45,000.


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