Despite increased earnings post-collision, Court finds Plaintiff has suffered loss of capacity, KK v CJ
2020 BCSC 286
The Reasons for Judgment of Mr. Justice E.M. Meyers were given at Vancouver, BC on March 2, 2020.
Ms. K was 46 years old at the time of the trial of this matter. She was involved in two motor vehicle collisions, the first on March 6, 2015 and the second on October 17, 2015. Ms. K claims she has suffered soft tissue injuries and is presenting a claim for general damages, past income loss, future loss of income, loss of housekeeping capacity and cost of future care. At the time of the accident, she was certified as an Early Childhood Educator and was employed part-time in various childcare positions with a variety of employers. After the accident she continued on with some of these employers, but also obtained a position as a security screener at Vancouver International Airport
The defendants have admitted liability for the first collision but have denied liability for the second collision. They state that several of the injuries Ms. K complains of existed before the accident and at most the accident exacerbated them. Also, they claim that intervening events took place after the accident, breaking the chain of causation. The defendants deny all of the claims except for general damages. They further claim that Ms. K failed to mitigate her losses.
Dr. Mian, Physiatrist, for the plaintiff, concluded that her injuries, including her neck, back, right shoulder, lumbosacral radiculopathy, chronic insomnia disorder and mood disturbance were all the result of the motor vehicle collisions. He further said that he expected Ms. K to experience some degree of chronic pain for the remainder of her life, with some partial improvements with recommended treatments.
Dr. Gharsaa, Orthopaedic Surgeon, examined Ms. K on behalf of the defendants. He stated that although the MRI showed signs of chronic changes, including tendinopathy and a small rotator cuff tear, in his opinion the tear was not related to the motor vehicle accident. However, he went on to say, “It seems that she did have some right shoulder pain just a few months prior to the subject motor vehicle accident that may have been exacerbated by the subject motor vehicle accident”. In cross-examination he agreed that people who do not recover from their injuries within three months go on to develop chronic pain syndrome.
Mr. Justice Meyers found Ms. K to be a credible witness. He accepted Dr. Mian’s opinion as well as Dr. Gharsaa’s acknowledgment that pre-existing shoulder pain may have been exacerbated by the accident. He also found that, despite Ms. K having found new employment and earning more after the accident, she still suffered a loss of capacity.
Mr. Justice Meyers awarded the plaintiff general damages in the amount of $90,000.00; Loss of past income earning capacity – $21,000.00; Loss of future income earning capacity $65,000.00; Loss of housekeeping capacity – $30,000.00; Cost of future care – $7,500.00. Special damages were agreed at $10,512.00, for a total award of $224,012.00.
The full text of this Decision can be found here
For further analysis and reporting of the decision, please download the linked PDF.
If you would like to book assessments with Dr. Mian, Physiatrist or Dr. Gharsaa, Orthopaedic Surgeon, please contact us at Integra