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$75,000 Awarded for Ongoing Knee & Elbow Pain in ICBC Injury Case

In the recently reported case of Duly v. Lachance, 2012 BCSC 258, Madam Justice Maisonville awarded $75,000 in non-pecuniary damages (pain & suffering) after a five day trial to a plaintiff injured in a car accident in Kamloops in October 2007. The plaintiff was injured when his vehicle was struck broadside by the defendant’s vehicle. Liability for the accident was admitted.


Osteoarthritis Pain in ICBC Injury Case 


At the time of the accident the plaintiff was fifty-two years old and worked as a project manager for the provincial Ministry of Transportation. The main issue at trial was whether the osteoarthritis pain suffered by the plaintiff in his right knee and elbow following the accident where “triggered” by the accident. The court found that the pain was caused by the accident.


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


[123] There is no issue that Mr. Dulay has suffered a loss. He will no longer be able to enjoy all the activities he did with his family and for his temple. Further, as noted by Griffin J. in Fata v. Heinonen, 2010 BCSC 385, the injury to a person nearing retirement is frequently more difficult to endure. As aptly stated by Griffin J. at para. 88:[88] The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality. When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life. Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age. The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.).[124]I find Griffin J.’s reasoning apt here in Mr. Dulay’s case where he is nearing retirement and has lost the ability to function in a way that has altered how he lives.[125] Additionally, Mr. Dulay continues to work and perform everything he can. He has not asked for his employer to accommodate him. He is a team player and endeavours to do everything he can even though he must stop, take medication, and bear much pain. Again, as stated by Verhoeven J. citing Stapley v. Hejslet, 2006 BCCA 34 at para. 46 in Power v. White, 2010 BCSC 1084 at para. 68:

Stoicism of the plaintiff should not reduce the award.


Loss of Earning Capacity


The court awarded the plaintiff $40,000 for a loss of earning capacity despite there being no ongoing wage loss. Justice Maisonville provided the following reasons for this award:


[138] Here, there is evidence, which I accept, that the plaintiff wanted to go into private consulting following his retirement from the Ministry. I find that to be a real and substantial possibility that he now has lost. His physicians have opined that his condition is only going to deteriorate. In private consulting he would not be restricted to only the area of the province he presently services. He could be required to travel anywhere. He would also need to inspect the sites being developed. His ongoing pain has resulted in a probability of a real possibility of a loss of earnings given the opinions of the two orthopaedic surgeons that his condition will only worsen and the fact that it is likely on a balance of probabilities that Mr. Dulay will in fact require a procedure in the future to help him with his knee – being arthroscopy.


[139] In all the circumstances I start with the finding that, it is an assessment for the court not a mathematical calculation. Given the lack of evidence on the income of private consultants the task is more challenging. Nonetheless, I have found there is a real and substantial possibility of loss. In the absence of contingencies, $60,000 for loss of earning capacity I find, would be an appropriate award. However, allowance must be made for the contingency that the basis of this award may not turn out as thought. I reduce this award to $40,000 in recognition of future contingencies.
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