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Surrey ICBC Chronic Pain Injury

Surrey ICBC car accident injury claims often involve obvious and catastrophic personal injuries. But did you know Surrey ICBC car accident claim cases often involve injuries that are not easily seen? Surrey ICBC Chronic Pain Injury claim cases can be extremely debilitating both physically and mentally to the victim of a Surrey ICBC car accident claim.

What Is A Chronic Pain Injury?

It’s important you hire a lawyer with years of experience handling Surrey Chronic Pain Injury cases.

Chronic pain is pain that doesn’t go away after three months. Chronic pain can be intermittent (occurring on and off). It may vary with intensity during the day or it can be persistent. Chronic pain can result from a Surrey ICBC car accident injury or from car accident injuries required for injuries caused by an ICBC accident surgery amongst other causes.

Proper Damages for Surrey Chronic Pain Injury

In the 2014 case of Wainright, a 31 year old single mother who had overcome the need for social assistance, obtained her realtor’s licence and secured successful employment at an established realty firm was hit by another driver with alcohol in their system in 2008 and at trial in 2013w as awarded total damages assessed amount to $195,580.73:

Non Pecuniary Damages             $60,000
Past Loss of Income               $76,300 (less tax)
Future Loss of Income             $45,000
Costs of Future Care              $10,337.50

Today’s blog will focus on what a proper award for the injured mother should be for loss of ability to earn money at her job. Here’s what the judge said about the injured mother’s injuries and Surrey ICBC chronic pain injury:

Mother’s evidence

 [30]         The plaintiff testified that the injuries from the MVA continued to cause her problems after 2008 including: weekly headaches, intermittent difficulties with her vision; neck pain; ringing in her ears; hearing that “goes in and out”; restricted left shoulder movement; sore right shoulder; sharp pain behind her shoulder blades; low back pain, numbness in her forearms and fingers; pain in her right hip joint and buttocks; and pain on the top of her right knee.

Doctor’s Evidence

[44]         His diagnosis with respect to injuries resulting from the MVA in the 2010 report included: grade 2 whiplash to the neck and back; transient left ulnar neuropathy; soft tissue injuries resulting in contusions and restriction in movement; transient exacerbation of her major affected disorder contributing to insomnia and inability to cope with stress; and chronic mechanic back pain leading, along with other factors, to transient opiate addiction.

[45]         His diagnosis in the 2013 report is similar but included “chronic pain syndrome”, which he described as not being “bad enough” to be recognized as fibromyalgia. In his opinion, the MVA exacerbated her pre-existing symptoms which progressed into “a complex pain disorder which is expected to persist for the foreseeable future and probably indefinitely.”

Loss of Earning Capacity

[170]     The legal framework governing an award for loss of earning capacity was summarized by Madame Justice Dardi in Midgley v. Nguyen, 2013 BCSC 693 at paras. 236-240:

The legal principle that governs the assessment for loss of earning capacity is that, insofar as is possible, the plaintiff should be put in the position he or she would have been in but for the injuries caused by the defendants’ negligence: Lines v. W. & D Logging Co. Ltd., 2009 BCCA 106 at para. 185. It is well-settled that an award for future loss of earning capacity represents compensation for a pecuniary loss: Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 32. Compensation must be made for the loss of earning capacity and not for the loss of earnings: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; X. v. Y, 2011 BSCS 944 at para. 188.

The recent jurisprudence of the Court of Appeal has affirmed that the plaintiff must demonstrate both an impairment to his or her earning capacity and that there is a real and substantial possibility that the diminishment in earning capacity will result in a pecuniary loss. If the plaintiff discharges that requirement, he or she may prove the quantification of that loss of earning capacity either on an earnings approach or a “capital asset” approach: Perren v. Lalari, 2010 BCCA 140 at para. 32. Regardless of the approach, the court must endeavour to quantify the financial harm accruing to the plaintiff over the course of his or her working career: Pett v. Pett, 2009 BCCA 232 at para. 19; X. v. Y. at para. 183.

As enumerated by the court in Falati v. Smith, 2010 BCSC 465 at para. 41, aff’d 2011 BCCA 45, the principles which inform the assessment of loss of earning capacity include the following:

(i) The standard of proof in relation to hypothetical or future events is simple probability, not the balance of probabilities: Reilly v. Lynn, 2003 BCCA 49 at para. 101. Hypothetical events are to be given weight according to their relative likelihood: Athey at para. 27.

(ii) The court must make allowances for the possibility that the assumptions upon which an award is based may prove to be wrong: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.). Evidence which supports a contingency must show a “realistic as opposed to a speculative possibility”: Graham v. Rourke (1990), 75 O.R. (2d) 622 at 636 (C.A.).

(iii) The court must assess damages for loss of earning capacity, rather than calculating those damages with mathematical precision: Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43. The assessment is based on the evidence, taking into account all positive and negative contingencies. The overall fairness and reasonableness of the award must be considered: Rosvold v. Dunlop, 2001 BCCA 1 at para. 11.

Although a claim for “past loss of income” is often characterized as a separate head of damages, it is properly characterized as a component of loss of earning capacity: Falati at para. 39. It is compensation for the impairment to the plaintiff’s past earning capacity that was occasioned by his or her injuries: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30; Bradley v. Bath, 2010 BCCA 10 at paras. 31-32; X. v. Y. at para. 185.

While the burden of proof relating to actual past events is a balance of probabilities, a past hypothetical event will be considered as long as it was a real and substantial possibility and not mere speculation: Athey at para. 27.

This court in Falati at para. 40 summarized the pertinent legal principles governing the assessment of post-accident, pre-trial loss of earning capacity and concluded that:

[40] … the determination of a plaintiff’s prospective post-accident, pre-trial losses can involve considering many of the same contingencies as govern the assessment of a loss of future earning capacity. … As stated by Rowles J.A. in Smith v. Knudsen, 2004 BCCA 613, at para. 29,

“What would have happened in the past but for the injury is no more ‘knowable’ than what will happen in the future and therefore it is appropriate to assess the likelihood of hypothetical and future events rather than applying the balance of probabilities test that is applied with respect to past actual events.”

Don’t go it alone if you have a Surrey ICBC Chronic Pain Injury Claim when you can meet with us for free to move forward with your recovery and get the largest fair settlement possible. Call us at 604-576-5400 you’ll be happy you did.

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