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Court Awards $65,000 for Chronic Back Pain in ICBC Injury Case

In the recently published case of Rutter v. Allen, 2012 BSC 135, Mr Justice Joyce awarded $65,000 in non-pecuniary damages (pain and suffering) after a four day trail to a plaintiff injured in a four vehicle accident on the Trans-Canada Highway in December 2006 when his vehicle was rear ended. With respect to the injuries sustained by the plaintiff, Justice Joyce said the following:


[53] I find that Mr. Rutter’s suffers chronic back pain that was caused by the accident of December 15, 2006. I find further that it is unlikely that he will return to his pre-accident level of activity, although it is likely that he can achieve some improvement with regular exercise, including core muscle strength training.
In making the above award, Justice Joyce said the following:
[65]Mr. Rutter led a very active life before the accident and was involved in a number of sports, particularly golf and running. His injuries, particularly the back injury, have led to a significant change in lifestyle for Mr. Rutter. Since the accident, Mr. Rutter has had to reduce his sporting activities substantially. He is also curtailed somewhat in his day-to-day activities, including assisting with housework and household maintenance. He has difficulty sleeping and, at times, is more irritable than he was before the accident. Fortunately, Mr. Rutter has been able to maintain his full-time employment despite his symptoms. I am satisfied that Mr. Rutter finds his life today more frustrating and less enjoyable than previously. Mr. Rutter suffers chronic back pain that is likely to continue well into the future, although Dr. le Nobel is of the opinion that if Mr. Rutter engages in an exercise regime that is developed and maintained with the assistance of a physiotherapist and kinesiologist some improvement in his symptoms is probable.

Loss of Future Earning Capacity in ICBC Injury Case:

The plaintiff’s sought $75,000 to compensate him for a loss of earning capacity. Ultimately, his claim for loss of future earning capacity was dismissed. With respect to his decision not to make an award for this claim, Justice Joyce held that the plaintiff failed to prove a real possibility of a future income loss resulting from his injuries. In that regard he said the following:


[93] I am satisfied that if the plaintiff were to lose his job, it would not be because of the accident. He has proven himself capable of working, without missing any time, since the accident. He has performed his job well, according to his periodic assessments. If he requires improvement with regard to his current position, it is with regard to interpersonal skills and communication. In my view, Mr. Rutter is an intelligent man with a good work ethic and is very capable of improving in these areas. In my view, his fears regarding the security of his employment with his current employer are not well-founded.


[94] Mr. Rutter submits, however, that circumstances other than his performance might result in the loss of his job and, if that were to occur, he would be less marketable as an employee. That would certainly be the case with respect to jobs requiring significant physical capacity, but Mr. Rutter’s experience is in the field of sales and management, where he has proven himself capable, both before and after the accident. In my view, there is no realistic possibility of his pursuing or attempting to pursue a career that would require a physical capacity beyond that which his present job requires, which he has been able to handle.


[95] With regard to the lost opportunity to start up a renovation business, I am not satisfied that there was a real and substantial possibility that he would have pursued such an undertaking. Mr. Rutter said he had thought of starting such a business when he turned 55. He said he talked to his friend about going into business, but the friend did not testify. No plan was put forward concerning the proposed business. Mr. Rutter has done some home renovations and did some work on the house that he built in Houston, which I will deal with more fully later in these Reasons, but he is not a qualified tradesperson. Further, I do not believe it is reasonable to suppose that Mr. Rutter could have established and run a renovation business that could provide remuneration greater than that which he has enjoyed and can continue to enjoy from his current occupation.


[96] I am not satisfied that there is any basis upon which Mr. Rutter is entitled to compensation for loss of opportunity or capacity to earn income in the future.


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