Ward v. Klaus,2010 BCSC 1211
August 31, 2010- There was no settlement with ICBC on this relatively uncontentious rear end injury claim. The injury claimant was injured in a car accident at the parking lot of Evans Elementary School in Chilliwack, British Columbia. The injury claimant was driving a Pontiac Sunbird when it was hit from behind by a Buick Park Avenue. ICBC admited fault .
The ICBC injury claimant alleged several injuries to herself as a result of the car accident, almost all of which had healed. She continued to suffer pain in her neck and headache pain, along with a continual low-grade depression. Worst of all she suffered excruciating migraine headaches during which the pain completely disables her ability to do work or to enjoy her life. In addition she claimed a loss of homemaking capacity.
Judge Rice pointed out that the law is now settled that loss of homemaking capacity is compensable and quoted McTavish v. MacGillivray, 2000 BCCA 164, 74 B.C.L.R. (3d) 281 at para. 63:
“As we have seen, it is now well established that a plaintiff whose ability to perform housekeeping services is diminished in part or in whole ought to be compensated for that loss. It is equally well established that the loss of housekeeping capacity is the plaintiff’s and not that of her family. When family members have gratuitously done the work the plaintiff can no longer do and the tasks they perform have a market value, that value provides a tangible indication of the loss the plaintiff has suffered and enables the court to assign a specific economic value in monetary terms to the loss. This does not mean the loss is that of the family members or that they are to be compensated. Their provision of services evidences the plaintiff’s loss of capacity and provides a basis for valuing that loss. The loss remains the plaintiff’s loss of economic capacity.”
Personal injury lawyers fighting ICBC for injury claimants need to know that in Kroeker v. Jansen , the Court of Appeal held that loss of housekeeping capacity should be awarding to the injury claimant in addition to pain and suffering, and where appropriate, such a money award should be made despite whether housekeeping help was actually hired.
The judge , taking into account the experts’ evidence and the in jury claimant’s history, allowed a large portion of the amounts claimed for housekeeping, yard and home maintenance assistance to age 65.
In this case, lawyers for ICBC and the injury claimant agreed that this was a soft-tissue injury to the neck resulting in continuing neck pain, and continuing generalized moderate headaches with severe migraine headaches, occurring two or three times per week. The pain during such migraine headaches continues to be excruciating, and her pain and suffering as a whole has affected very negatively almost every aspect of her life. She has undergone surgeries to implant a neurostimulator which has only been moderately successful at best as a means of alleviating the pain. The consensus of the medical experts has been that the ICBC injury claimant has reached the point of maximum medical improvement, and that the headaches and pain will continue indefinitely. The judge awarded her $150,000.00 for her pain and suffering. Posted by Mr. Renn A. Holness
Issue: Is $150,000.00 court award for pain and suffering enough for permanent excruciating pain affecting almost every aspect of an injury claimant’s life?
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