ICBC claim of $1.1 million for injured who couldn’t be doctor or nurse
In the recent decision of Bhatti v. Ethier, 2018 BCSC 1779, an ICBC claim, the plaintiff Bhatti claimed damages for personal injuries suffered in two motor vehicle accidents that occurred November 4, 2012 and December 28, 2012. The defendants, represented by ICBC claim counsel, admitted liability for causing the accidents. At the time of the accidents the plaintiff was a 16-year-old high school student, enrolled in Grade 11 at Abbotsford Senior Secondary School. At trial in April and May 2018, she was 21 years of age.
The main issue in the case was the extent to which the accident injuries have or would affect her career. The plaintiff contended that but for her injuries she would have become a medical doctor, or alternatively, a registered nurse, or a nurse practitioner, and would have earned incomes matching those occupations. Although she personally has not given up her hopes, on her behalf, counsel contended that in all likelihood she will now earn income matching high school graduates generally. She claimed damages for future loss of earning capacity of $1,750,000 or alternatively $1,588,584.
As is typical in an ICBC claim, the defendants contended that the plaintiff’s loss of earning capacity is not as profound as the plaintiff submitted. The defendants contended that her career aspirations have merely been delayed. The defendants contended that an award of $250,000 for loss of future earning capacity is appropriate. The defendants also alleged that the plaintiff has failed to mitigate her loss, in failing to accept medical treatment, primarily in resisting use of mental health treatment such as anti-depressant medication, and psychological treatment, and that all of her damage claims should be reduced by between 25% and 30%.
At the time of the first accident, the plaintiff was a passenger in an Acura which collided with the defendant Ethier’s 1994 Buick sedan at the intersection of Marshall Road and Primrose Street in Abbotsford. The plaintiff may have briefly lost consciousness when the airbag struck her face. X-rays of her neck were taken, and showed no fractures. She was discharged after several hours. The plaintiff returned to school in late November after an absence of about two or three weeks. She had some further absences in December, before the winter break in late December. She had difficulties at school, due to headache, persisting pain, difficulty in sitting, and with stairs. She received 54 physiotherapy sessions to treat neck and back pain.
The second accident, another ICBC claim, occurred December 28, 2012, while the plaintiff was off school for the winter break. It was much less forceful and severe than the first accident. After the accident she complained then of headaches, blurry vision, increased lower back pain, and difficulty concentrating and focusing on her studies. The plaintiff was also involved in a third motor vehicle accident on February 5, 2016 but suffered no injury. She was healthy prior to the first accident. Dr. Tarzwell diagnosed: (1) mild Traumatic Brain Injury (mTBI); (2) mild Neurocognitive Disorder Secondary to Traumatic Brain Injury; (3) Post-traumatic Stress Disorder, and (4) Chronic Pain with Central Sensitization. Dr. Zaghloul diagnosed Adjustment Disorder with Anxious, Depressed Mood, or Major Depressive Disorder, features of Post-traumatic Stress Disorder, and perfectionist traits. His report was quite positive.
After the accident, she enrolled in and failed nursing courses at the University of the Fraser Valley (UFV). UFV advised her that she was permanently removed from its BSN program. At trial the plaintiff was a credible witness. Her own description of her condition was found reliable. Her former teachers corroborated her pre-injury high level of achievement. Her family testified at trial that prior to the accident she was a high achiever but since the accident she has had to work and study much more than she did before. Vocational test results administered by a vocational psychologist, Dr. D. Powers, on October 5, 2015, showed diminished cognitive faculties especially in concentration and short-term memory. Her academic fluency scores were also in the low to average range. Dr. Miller, the expert for the defendant, provided a diagnosis similar but not identical to that of Dr. Tarzwell. He diagnosed: (1) minor TBI ; (2) major depressive disorder; (3) post-traumatic stress disorder; (4) Somatic Symptom Disorder with predominant pain.
The plaintiff relied on the report of an economist, Darren Benning, as a basis for the assessment of damages for loss of earnings capacity. Mr. Benning calculated the career earnings of the plaintiff under these scenarios as follows: Registered Nurse: $2,214,909; Nurse Practitioner: $2,603,302; Family Physician: $3,651,055; High School Graduate: $852,852.
The court considered it likely that the plaintiff will be able to achieve a university degree, although the nursing degree is unlikely. The court found that there is a very strong likelihood that she can obtain a college diploma of some type. The court saw little chance that she could become a GP. The court did not accept that she will earn only the average of high school graduates. That would be a worst-case scenario, which the court considered unlikely. On the other hand, a best-case scenario could involve achieving a university degree of some kind, and going on to some other skilled occupation, perhaps in health care, or perhaps another field. The court accepted that pre-injury the plaintiff had the potential to become an RN, NP, or GP. The evidence did not allow the court to assess her chances of achieving these occupations with any degree of precision or confidence. The court accepted that she is now unlikely to achieve any of these occupations, due to her accident injuries. However she likely remains capable of achieving a university degree. Bearing in mind all relevant factors and contingencies, the court assessed the damages for the plaintiff’s loss of earning capacity both past and future at $925,000.
The court assessed damages for non-pecuniary loss (pain and suffering) in the amount of $200,000. This amount was reduced by 10% for the plaintiff’s failure to mitigate loss. Thus the net non-pecuniary award is $180,000. Costs of future care were allowed at $30,900. Special damages were allowed at $10,531.95. The total award for this ICBC claim was $1,146,431.95.
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