In this multiple car accident personal injury case the claimant was rear-ended twice and developed a chronic soft tissue pain condition. He sought an award of over $1 million and ICBC, the defendant insurer, was only prepared to pay $143,000. The insurer argued unsuccessfully that the claimant should be forced to attend active rehabilitation and his claim should be reduced on account of his failure to attend and the judge awarded over $500,000.(Fedosenko v. Zahirfar,2018 BCSC 1297 at para 168)
The first car accident occurred at the intersection of Cooper Road and Benvoulin Road in the City of Kelowna while the claimant was waiting to merge into traffic on Benvoulin.The second accident also occurred in in the City of Kelowna. The claimant was stopped for a red light on Springfield Avenue at the intersection with Durnin Road when his vehicle was struck from behind. Both car accidents were rear end collisions.
ICBC alleged that the claimant had acted unreasonably in not seeking rehabilitation treatment. The defendants’ case for failure to mitigate was based on the claimant’s failure to engage in physiotherapy and to attend at a gym. In refusing to reduce the claimant’s award the judge made the law very clear,
The law does not require perfection in the pursuit of rehabilitation
Award for Pain and Suffering
The court reviewed the basic principle behind non-pecuniary damages (pain and suffering and loss of enjoyment of life) digging back 40 years to Mr. Justice Dickson in Andrews v. Grand & Toy Alberta Ltd.,  2 SCR 229 at 261-62:
There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution….
The claimant’s soft tissue injuries caused pain and functional limitations in many aspects of his life and the pain was expected to last into the future. However, the award also took into account of his degenerative disc disease. As the judge stated,
 In all the circumstances, an award of $80,000 is indicated in this case but it will be reduced by 10% because of the degenerative changes which pre-dated and were unrelated to the accident. Therefore, the award will be $72,000.
The total personal injury award in this multiple car accident case was: Pain and Suffering of $72,000; Special damages of $22,000; Loss of income of $145,000; Future loss of income of $180,000; Cost of future care of $ 77,000; and Past loss of housekeeping capacity of $11,000 for a Total of $507,000.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.