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Damages - TYPES OF DAMAGES - For personal injuries - Loss of earning capacity - Non-pecuniary loss - Pain and suffering

Thursday, December 01, 2016 @ 7:00 PM  


Appeal by the defendant from damages of $100,000 for loss of future income earning capacity and $85,000 for non-pecuniary damages. The respondent suffered chronic back pain as a result of a 2010 motor vehicle accident. The respondent was 17 years old at the time of the accident and 23 years old at the time of trial. At the time of trial, the respondent was working in a law firm in an administrative support position earning $36,000 per annum. The doctors agreed and the trial judge found that the respondent might require multiple rhizotomy treatments and one medial block over her lifetime. The trial judge found that the temporary worsening of symptoms after rhizotomy treatment might limit her from working for four to six weeks each time the procedure was performed. The trial judge also accepted the medical evidence that the respondent might need extended maternity leave in the event she raised a family. The trial judge accepted the respondent’s evidence that she was bothered daily by lower back pain that came on during periods of prolonged sitting or standing and that interrupted her sleep every night.

HELD: Appeal dismissed. The trial judge made no palpable and overriding error concerning the amount of time that would be required to be taken off work following a rhizotomy procedure. The trial judge made no palpable and overriding error in allowing for further rhizotomies beyond two based on the evidence. The trial judge made no factual error when he found that there was a real and substantial possibility that the respondent’s injuries would affect her capacity to assume some employment positions or some employment responsibilities. There was evidence that her back pain affected her endurance at work and at school. The trial judge was entitled to accept the experts’ evidence that a paralegal position was not foreclosed to the respondent, but that she had some limitations that could affect her employment income within that occupation. Given the chronicity of the complaints, the kind of treatment proposed, the impact of that treatment on income, and the prospect of repeated rhizotomy treatments, which generally offered only temporary relief, the judge’s allowance for loss of future earning capacity were not outside the appropriate range for such an award. While the award for pain and suffering was a generous one, it was not so inordinately high as to be wholly erroneous.