2024 chronic pain and psychological injury

This is a recent case involving an 18 year old Plaintiff involved in a motor vehicle accident which resulted in chronic pain and psychological injuries. A claim was brought for general damages, future loss of earning capacity, housekeeping including a claim for cost of future care and special damages.

The injuries involved were headaches, neck pain, shoulder pain, upper back pain, lower back pain, and psychological injuries, including anxiety and an adjustment disorder with depressed mood.

The Plaintiff claims damages between $1,000,000 and $2,400,000, while the defendants argue the award should be in the range of $125,000 to $175,000, highlighting a significant difference between the parties’ positions. 

One of the key issues was the Plaintiff’s future income loss claim as she alleged that she had a desire to become a medical doctor but her injuries disrupted this goal, hence the high award being claimed.

The Defence put forth their theory that, based on pre-accident abilities, including her educational history, the Plaintiff’s occupational goals are unrealistic.  This case offers a good read on the future loss component. See link at the end of this article.  Our article today will simply identify a number of referenced cases relied on by both parties on the issue of quantum for chronic pain and psychological injuries:

REFERENCED CASES BY THE PLAINTIFF:

a)   Tritton v. Lai2023 BCSC 956 ($190,000 reduced by 20% for pre-existing conditions)

b)   Fletcher v. Biu2020 BCSC 1304 ($200,000, or $230,000 if valued in 2023)

c)   Gundarah v. Teves2023 BCSC 1540 ($200,000)

d)   Moges v. Sanderson2020 BCSC 1511 ($200,000, or $230,000 if valued in 2023)

e)   Khosa v. Kalamatimaleki2014 BCSC 2060 ($140,000, or $175,000 if valued in 2023)

f)     Sebaa v. Ricci2015 BCSC 1492 ($180,000, or $222,000 if valued in 2023)

g)   Watts v. Lindsay2019 BCSC 2239 ($160,000, or 185,000 if valued in 2023)

h)   Cole v. Sandhu2020 BCSC 709, ($175,000, or $201,000 if valued in 2023)

REFERENCED CASES BY THE DEFENCE:

  1. Manhas v. Jaswal2020 BCSC 586, $60,000

The plaintiff was found to have difficulty studying, experienced increased irritability, and that Her injuries impacted her ability to help with caring for her siblings and doing household tasks.

The plaintiffs were found to have sustained soft tissue injuries, some of which became chronic in nature, leading to varying impacts on the ability to perform at work, complete household tasks as quickly as before, or to enjoy some recreational activities.

As quoted from the case on the issue of future loss, the Court had the following to say:

  • I find that the evidence suggests that potential future events could give rise to a loss, namely that there is a real and substantial possibility that Ms. Z’s injuries will prevent her from achieving an independent career outside of Fraser Montessori in the future. Ms. Z is entitled to compensation for the loss of a capital asset caused by the Accident.
  • [133]   While I do not find that there is a substantial likelihood that Ms. Z would have become a doctor or taken over Fraser Montessori by 2024, I do find that there is a real and substantial possibility that Ms. Z would have pursued some limited further education and found employment other than with her mother.
  • [134]   Even if the education was in a field other than early childhood education, I find that that Ms. Z likely would have obtained employment with a salary that is roughly equal to what she earned at Fraser Montessori. In the alternative, I find that she likely would have continued to work for her mother for as long as the daycare remained under her ownership, and then she would have found comparable employment in a similar industry.
  • [135]   I find that Ms. Z likely would have worked until the age of 65. Where the capital asset approach is employed to valuing future lost earning capacity, it is acceptable to award the equivalent of some multiple of annual earnings as the basis for compensation: Mannella v. Obregon,  2020 BCSC 715at para. 45.
  • [136]   I am not prepared to find that Ms. Z is entitled to compensation based on the loss of 38 years of employment as proposed. The evidence does not establish that Ms. Z is entirely incapacitated. She has an established ability to work with accommodations (albeit for a sympathetic employer who may or may not close or sell her business within the next few years). It is also likely that with some improvement to either her physical or mental health, her prognosis overall will improve.
  • [137]   The assessment of damages is a matter of judgment and not calculation: Rosvold v. Dunlop, 2001 BCCA 1 at para. 18. Assessing an award for future loss of income is not a purely mathematical exercise; although the court should endeavour to use factual mathematical anchors as a starting foundation to quantify such loss: Jurczak v. Mauro,  2013 BCCA 507at paras. 36–37; Morgan v. Galbraith,  2013 BCCA 305at para. 54.
  • [138]   In line with the alternative methodology proposed in Ms. Z’ s submissions, I assess Ms. Z’ s loss as a percentage of her “without Accident” earning capacity. I do so with reference to the (approximate) $50,000 number as proposed by Mr. Nordin as an average income in BC for an individual with a university certificate or diploma (but not a bachelors degree), which is also largely in line with the occupations Ms. Wong considered reasonable possibilities for Ms. Z. This is also roughly the amount Ms. Z was paid by Fraser Montessori, and was (at least nominally) accepted by the defendants as a baseline.
  • [139]   Assuming she would have worked in a similar fashion making similar money, Ms. Z’ s without accident earning capacity can be measured as follows: $50,000 x 28.8051 x 90% = $1,296,230 (namely, salary x present value multiplier, factoring in a 10% negative contingency.)
  • [140]   In her submissions, Ms. Z argues that she should be assessed a loss of earning capacity in the range of 40-60% of that total, in order to arrive at her alternative award of 650,000. I would not accede to that percentage of loss. Instead, I consider her loss of earning capacity to be in the 25-30% range.
  • [141]   While Ms. Z has obtained experience and even some training in the childcare field, her time at Fraser Montessori is inextricably linked to the devoted and generous support of her mother. The Accident deprived Ms. Z of the opportunity and ability to find her own path in the manner and on the timeline she might have otherwise. This award reflects this reality but also indicates that Ms. Z still has potential to improve, manage and treat her symptoms, and to find a vocation outside of the support currently provided by her mother.
  • [142]   I therefore award Ms. Z $350,000 for loss of future earnings. I consider this to be a fair and reasonable assessment given all the circumstances. Ms. Z has suffered a significant loss, but not a total one

Conclusion:

The Court did agree that the Plaintiff was entitled to be compensated for a loss of a capital asset, but did not accept that she would have become a medical doctor. 

The Court awarded the following:

a)   Non-pecuniary – $150,000

b)   Loss of Future earning capacity –$350,000

c)   Cost of future care $39,183

d)   Special damages (as agreed to by the parties before trial) – $3883.00

Total: $543,066

Case:  Ziolkiewicz v Emmanuel, 2024 BCSC 1174 (CanLII)

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