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$40,000 Awarded for Chronic Soft Tissue Injuries in ICBC Injury Case

In the recent case of Eng v. Titov, 2012 BCSC 300, Madame Justice Allen awarded a plaintiff injured in a motor vehicle $40,000 in non-pecuniary damages after a three-day trial.  The plaintiff was rear-ended in April 2009 after exiting off Highway #1 at Gaglardi Way in Burnaby, BC.  His vehicle sustained $12,000 in damages.  Following the accident the plaintiff experienced pain in his neck and shoulder and an ache in his low back.  He had pain in his knee for six months.

Summary of ICBC Injury Case

The plaintiff, a bus driver, took physiotherapy and massage and missed 41 full days from work.  At the time of trial in 2012, the plaintiff had ongoing chronic pain:

[27] The plaintiff suffered severe episodes of lower back pain that lasted two or three days. They have not occurred for the past year. His right knee problems resolved after about six months. His irritable mood and short temper have improved although his girlfriend and best friend still find him changed for the worse in that regard.

[28] While the acute phase lasted only a few months, his condition is chronic and unlikely to improve significantly. His neck and shoulders become tighter when he is driving as he is constantly turning to look in mirrors. His level of pain and discomfort fluctuates but he is now used to a nagging pain which is always present and he has good days and bad days. As Dr. Koo testified, a person with chronic pain has to adjust to “the new normal”.

[29] Mr. Eng is not disabled. He is able to do most of his day-to-day activities although the pain and discomfort fluctuates from day to day. Mr. Eng is a stoic plaintiff and he should not be penalized for continuing to work hard at a stressful job that exacerbates his neck and shoulder difficulties.


Reasons for Judgment in ICBC Injury Case

The court gave the following reasons for the above-mentioned award:

[33]…Each case is unique. I would describe Mr. Eng’s injuries, which have not resolved almost three years after the accident, as moderate soft tissue injuries. They are chronic, ongoing – albeit fluctuating – and will probably continue indefinitely. On the basis of the evidence and awards in roughly comparable cases, I conclude that a fair and reasonable award is $40,000, taking into account the extent of Mr. Eng’s initial injuries and his continuing myofascial pain in his neck and shoulders. The fluctuating pain is exacerbated by his work activities and he is restricted in engaging in physical activities that he enjoyed before the accident.


Loss of Earning Capacity

The Court further awarded $25,000 for loss of earning capacity and gave the following reasons regarding that award:

[41] In this case, I do not find that Mr. Eng is limited in performing any realistic alternative occupation. If he were laid off as a bus driver, he would remain employable as an expert driver. However, his ability to work longer shifts and increase his income is impaired by his chronic neck and back symptoms, as well as his family obligations. He has already demonstrated a loss in that regard that is likely to continue. I would award him $25,000 under this head of damages.


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