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PHYSICAL AND PSYCHOLOGICAL INJURIES - Soft tissue - Depression - Considerations impacting on award - Degree of impairment

Monday, February 12, 2018 @ 8:33 AM  


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Action by Lewis for damages for personal injuries sustained in a 2014 motor vehicle accident for which Rubboli was at fault. Lewis was 19 years old at the time, working toward his red seal certification as a carpenter. He was not a great student but excelled in physical education and shop. He was highly active, enjoying competitive hockey, working as a carpenter’s apprentice and performing all manner of manual labour for his family. Lewis was injured when Rubboli’s vehicle struck Lewis’s truck from behind as Lewis waited at an intersection to make a left turn. Both vehicles were written off in the accident. Lewis felt dizzy and confused after the accident. Neck and shoulder pain followed within days and did not resolve, while headaches and light-headedness resolved within a few weeks. Although he returned to work the week after the accident, his pain prevented him from performing even basic tasks, so he took five months off, during which time he undertook physiotherapy, massage and chiropractic treatments. Upon his return to work, his neck and shoulder pain escalated. He experienced pain while studying for his carpentry exams. If he had a hard workday, he was in pain until the next morning. He had to take more frequent breaks. He turned extra work down because he felt physically incapable. He reduced his recreational activities and helped less with chores around his house and his family’s cabin. He felt depressed. His friends and family members confirmed the changes to Lewis’s work and lifestyle that resulted from the accident. A physiatrist gave evidence that Lewis had sustained soft tissue injuries to his back, neck and shoulders, a mild concussion and a depressed mood as a result of the accident. He considered Lewis limited in activities that involved movement above shoulder height, and described him as moderately disabled in his ability to lift, work, sleep, drive, read or pursue leisure activities. He did not believe Lewis could be cured of his chronic pain.

HELD: Action allowed. The unchallenged evidence was that Lewis was strong, healthy, fit and physically active prior to the accident, and that all that changed because of the accident. Lewis was a credible witness whose self-reports were confirmed by other witnesses and the expert physiatrist. The drastic changes to Lewis’s life, not expected to resolve, justified an award of $85,000 in non-pecuniary damages. The parties agreed on a past income loss award of $9,072. The court added $15,000 for past loss of earning capacity, based on Lewis having to give up extra work that he had in the past taken on to develop his carpentry skills. A reasonable assessment of Lewis’s future income loss, based on his young age, the physical demands of a carpentry career and the limitations his injuries placed on him, was $150,000. For lost capacity to perform household tasks, Lewis was awarded $4,000. Special damages of $1,599 were agreed upon, while the court denied Lewis recovery of $875 for an MRI he obtained at a private clinic.

Lewis v. Rubboli, [2018] B.C.J. No. 21, British Columbia Supreme Court, E.J. Adair J., January 8, 2018. Digest No. TLD-Feb122018001