The claimant was injured in a car accident in Kamloops, B.C. (Power v. Carswell, 2011 BCSC 1672) which occurred in the intersection of Lansdowne St. and 3rd Avenue, which is controlled by traffic signals. The claimant was driving a Pontiac Sunfire going straight when she struck a Jeep turning left. Both fault for the accident and the quantum of damages were in issue in this personal injury case.
At the time of the accident the claimant was 28 years old and working as an instructor at a hairdressing school and she claimed that as a result of these injuries, she is no longer able to work as a hair stylist or instructor, and must retrain. She also claimed that she has a reduced ability to look after herself and her family.
The primary issue regarding compensation was the extent to which the claimant’s work and activities would have been restricted even if the accident had not occurred. The ICBC lawyer argued that the claimant would have suffered restrictions because of her injuries in a previous car accident, her large weight, and because of the physical strain of working as a hairdresser. The defence also argued that the claim for future lost earning capacity was exaggerated.
The personal injury lawyer for the claimant argued that the proper award would be about $390,000, consisting of $100,000 for pain and suffering, $31,573 for past lost income, $201,651.40 for retraining and lost future earning capacity, $55,292.05 for the cost of future care, and $406.69 for special damages.
ICBC, for the defendant, argued that the proper award would be about a total of $60,000, consisting of $50,000 for pain and suffering, $501 for past lost income, $25,000 for lost future earning capacity, and $5,000 for cost of future care, all reduced by 25% for failure to mitigate.
In awarding $221,000 Judge Gray stated,
[178] Ms. Power suffered moderate soft tissue injuries to her chest, left neck, left shoulder, and lower back in the Accident. The Accident caused a subligamentous disc herniation at L4-L5 which has caused her significant pain in her lower back. Despite painful treatment by cortisone injections into her hips and epidurally, her pain persists.
[179] Ms. Power now experiences hip and lower back pain which limits her ability to sit, stand, walk, and bend. She also experiences shoulder pain which limits her ability to hold her hands near or above shoulder level. As a result of these limitations, she can no longer work as a hairstyling teacher. Ms. Power made significant efforts following the Accident to continue in that line of work, but even with significant modifications, she was not able to do so on a prolonged basis. She has made the reasonable decision to pursue a different career which will more likely suit her physical capacity.
[180] As a result of her injuries, Ms. Power is also less able to care for herself and her family. For example, she has difficulty styling her own hair and doing laundry and other chores.
[181] As a further result of her injuries, Ms. Power suffers pain and is less able to enjoy recreational activities. For example, she is less able to go on long walks, to dance, and to sit for long drives or movies…
[210] Ms. Power is entitled to an award for the loss in her earning capacity which reflects both some of the costs of retraining and the remaining loss of physical capacity. The present value of the retraining costs for the four years of tuition and books is about $21,650. Because of Ms. Powers physical limitations, it is not reasonable for her to do substantial work outside the academic program, although she may be able to perform part-time work during her studies. She was earning about $25,000 per year, and therefore would lose about $100,000 in earnings during the period of completing such a program.
Posted By Mr. Renn A. Holness
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