Brar v. Kaur, 2010 BCSC 1220
September 2, 2010- In this Personal injury case the injury lawyer proved that the claimant was rear ended and his car sustained rear end damage of $568.67. The other driver admitted fault and the judge was asked to decide the case based only on affidavits. Neither the injury claimant or the at fault driver gave oral testimony in court. The judge pointed out that, “it is near to impossible to assess credibility…supported only by affidavits. The plaintiff’s injuries were only soft tissue injuries caused by a very minor accident and those complaints were subjectively based and not objectively verifiable. Accordingly the Court must be cautious in accepting his complaints as proven.”
The injury claimant said the car accident was not a great impact and he felt a sudden jolt. The injury claimant says this neck and back pain lasted for about six months. The family doctor in a report said that the injury claimant had a straightforward recovery, and recovered within six months.
the claimant’s personal injury lawyer argued that this evidence supported an award of $15,000 for pain and suffering and he relies upon cases including Boag v. Berna, 2003 BCSC 779. The ICBC lawyer representing the at fault driver argued an award of $3,000.00 to $3,5000.00 for pain and suffering was more appropriate.
The judge had difficulty distinguishing the decision in Boag v. Berna where in 2003, the award was for $14,000 for what appears to have been comparable soft tissue injuries that resolved within six months with no sequelae. The judge however found that Boag was not based on any stated comparable awards in other cases by judges of this Court so it is unknown how the trial judge in that case came to his figure for general damages. I can say however as the lawyer that represented the injury claimant in Boag v. Berna both sides presented cases to the judge and the injury claimant presented cases to the court including these summaries:
$20, 000.00 Ward v. Wishart, et al2001 BCSC 998 – Plaintiff suffering soft tissue injuries in motor vehicle accident which largely resolving within 7 months, but court also finding accident to have been a partial cause of depression experienced by plaintiff. Non-pecuniary damages assessed at $20,000. Court awarding further $5,000 for slight impairment in plaintiff’s future earning capacity
$20,000.00 Campbell v. Makela, et al, 2003 BCSC 634. Mr. Campbell was employed as an accounting assistant. He had been able to work since the accident, although he worked at a reduced number of hours for a few weeks and occasionally misses a half -day or so of work due to pain. He deposes that “based on the aggravation of my back and neck pain when I am physically active, I do not believe that I would be able to do any job that involved heavy or even medium physical work.” The court found the he suffered a “grade II whiplash” with the the acute period resolved by 50% in the first two months.
Ultimately in the injury case being reviewed today the court only awarded the injury claimant $4,000.00 for pain and suffering and found he had completely recovered in the first six months. Posted by Mr.Renn A. Holness
Issue: Is this award completely out of keeping with what you think is fair?