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PHYSICAL AND PSYCHOLOGICAL INJURIES - Pre-existing injury - Credibility

Wednesday, April 03, 2019 @ 8:28 AM  

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Appeal by the 59-year-old plaintiff from the assessment of her damages for personal injuries suffered in a motor vehicle accident in 2011. The appellant suffered soft tissue injuries to her neck, back and right shoulder as well as an aggravation of her depression, which led to post-traumatic stress disorder. By the trial in 2016, the appellant had not returned to fulltime administrative work. The appellant took anti-depressants for a mood disorder for 10 years prior to the accident. The trial judge found the appellant was an unreliable witness. He erroneously found the appellant had seen a counsellor and psychiatrist prior to the accident. He concluded the appellant’s psychological injuries had prevented her from working for two years post-accident and could impair her ability to work fulltime in the future. He awarded the appellant $75,000 in non-pecuniary damages, $76,701 for past loss of income, which represented two years of income loss, $75,000 for loss of future earning capacity, and $10,000 for cost of future care.

HELD: Appeal allowed in part. The trial judge’s reasons adequately explained the result and were sufficient to allow for appellate review. The trial judge’s palpable errors about the appellant’s pre-accident attendance with a counsellor and a psychiatrist were not overwhelming and were not material to his reasoning. There was ample evidence to support the trial judge’s finding that the appellant had a pre-existing entrenched mood disorder. The awards for non-pecuniary damages, future income loss and cost of future care were not inordinately low. The trial judge made irreconcilable findings about the appellant’s capacity once she was able to return to work. In light of his conclusion that the appellant had established a real and substantial possibility that her psychological injury would interfere with her ability to work fulltime, the trial judge was required to give weight to that possibility not just in the future but also in the past. By failing to do so, the trial judge approached the question of past income loss on a wrong principle. The award for past income loss was increased by $40,000 to $116,701.

Griffioen v. Arnold, [2019] B.C.J. No. 336, British Columbia Court of Appeal, M.E. Saunders, E.A. Bennett and Butler JJ.A., March 8, 2019. Digest No. TLD-April12019007