Whiplash and Soft Tissue Injuries leads to $1.9 million court award
In the recent case of Johnstone v. Rogic, 2018 BCSC 988, the plaintiff, Julie Lily Johnstone (“Ms. Johnstone”) asked for money compensation for whiplash and soft tissue injuries she received in a car accident. The accident that occurred on November 18, 2013. She was 38 years old at the time of the accident and had not suffered injuries from any motor vehicle collisions prior to that date. This was her first time suffering from whiplash and soft tissue injuries. Liability for the accident was admitted by the defendant.
Ms. Jonestone was a Quality Assurance Manager at Jacobs Engineering, a company for which she has worked in various iterations for 16 years. She was, by all accounts, a highly driven individual who excelled at her job. The issues at trial were what were the nature, extent, and duration of the whiplash and soft tissue injuries Ms. Johnstone suffered in the accident. What wasthe appropriate award of non-pecuniary damages for pain and suffering? What is the appropriate award for past income loss? What is the appropriate award for future loss of earnings or income-earning capacity? What amount, if any, should be awarded for the cost of future care? What is the appropriate award of special damages?
Ms. Johnstone suffered a whiplash and soft tissue injuries to her neck and back. After the accident, Ms. Johnstone drove her motor vehicle home but required her husband’s assistance to get out of the vehicle as the door would not open. The frame of the vehicle was bent by the collision. Ms. Johnstone was in significant pain and had more severe headaches. She described them as shooting pain tension headaches. As a result of the accident, Ms. Johnstone also attended numerous chiropractor and massage therapy treatments. She ultimately found both to be too painful to continue. The court accepted that Ms. Johnstone suffered whiplash and soft tissue injuries to her back and that the symptoms of her previously existing fibromyalgia were exacerbated by the accident. At the trial, she had not recovered from the injuries she sustained and in fact, her prognosis was guarded and uncertain. She continued to experience physical pain and her family and social life has also suffered.
Since the accident, Ms. Johnstone was been unable to properly care for her children or undertake necessary household chores. Her husband instead did the majority of the household tasks and described a very changed household. Ms. Johnstone had also previously enjoyed an active recreational lifestyle, including cycling and hiking. Since the collision, her whiplash and soft tissue injuries meant she was unable to do so, as her symptoms were aggravated. Ms. Johnstone’s temperament has was affected by the pain and discomfort from the collision. She was reported by friends, family and co-workers to be short-tempered and no longer displayed her previously bubbly outgoing disposition. The court awarded her $145,000 in non-pecuniary damages for pain and suffering
Despite her chronic pain from whiplash and soft tissue injuries, Ms. Johnstone did not taketime off work and continued with her normal work duties. There was no past wage loss. With respect to future wage loss, Ms. Johnstone was in a high level executive in a position – quality-control – that requires a high degree of concentration. In 2013 she was paid an annual salary of $146,567 and had benefits associated with her position. By 2016, her employment income was $174,330. The evidence made clear Ms. Johnstone was on a stellar career path. The medical evidence, however, established the impairment that the pain her condition placed upon her ability to do her work. Furthermore, the low back pain had a significant impact on the quality of her life and has not allowed her to function without significant pain in the workplace and home. Ms. Johnstone could work full-time, but it adversely impacted her personal and family life. Ultimately, this was not sustainable long-term and the court found that part-time work is the optimal path.
The court found Ms. Johnstone to be a reliable and credible witness and concluded that it is more than likely that Ms. Johnstone would undertake part-time work or part-time consulting and that it is more than likely that Ms. Johnstone’s future path will be in consulting. She was, despite her debilitating whiplash and soft tissue injuries, very motivated. It was therefore more than likely with her motivation and skills that she would be able to earn around $100,000 annually from consulting. Based on the economist report, the court found that the total loss resulting from a transition into consulting earning $100,000 annually is $1,537,440.41 for the remainder of her career. The cost of future care is somewhat difficult to assess. As there is a range of potential outcomes for Ms. Johnstone’s future, the Court concluded that a more realistic assessment of Ms. Johnstone’s future care costs is $250,000. Special damages were agreed to by the parties at $17,185.08.
In summary, Ms. Johnstone was awarded damages jointly and severally against both defendants in the total amount of $1,912,185.08 as follows:
Non-pecuniary damages: $145,000.00
Impairment of future earning capacity: $1,500,000.00
Cost of future care: $250,000.00
Special Damages: $17,185.08