An extremely active woman with a rewarding career found her life significantly impacted after she suffered serious injuries in a car accident caused by the defendant driver. In the trial, Camilleri v. Bergen, the defendant admitted liability for the accident and did not dispute the evidence from medical experts demonstrating that the plaintiff suffers chronic myofascial pain, as a result of the collision. However, the defendant challenged the amount of damages sought by the plaintiff, $865,000, which included $618,000 for future loss of earning capacity. The defendant suggested that an appropriate award of damages should rather be in the area of $51,000 to $89,000. Therefore, the issue to be decided in this civil action was the proper amount of damages owed to the plaintiff.
The facts of the case
The collision occurred in July 2011, when the plaintiff was a passenger in a vehicle driven by her husband and they were on their way to a friend’s home. The couple were waiting to make a right turn at an intersection when their vehicle was rear-ended by two cars. The defendant’s car, a Honda Accord, rear-ended a Toyota Camry that was waiting behind the plaintiff’s vehicle, which in turn rear-ended the Honda Pilot driven by the plaintiff’s husband. An action against the defendant driving the Toyota Camry was discontinued before this claim.
The plaintiff was conversing with, and looking at, her husband at the time of the impact, and immediately felt her head move forcefully to the right and left. She stated that she simultaneously “felt strange and unusual”, and was very dizzy and nauseous when she subsequently got out of her vehicle. When she awoke the next morning, she had a severe headache as well as soreness in her neck, head and left shoulder. The plaintiff went to work despite feeling unwell, but found that her memory was affected, her headache continued, and she experienced nausea, and stiffness and soreness in her neck. In the days following, her headaches and pain in her neck and shoulders did not improve and she sought medical assessment and treatments. At this time, she also filed a civil suit for damages against the at fault drivers. In the 3 ½ years until the trial, the plaintiff continued to suffer from chronic headaches, upper back and neck pain, as well as numbness and pain in her left arm, and was unable to work at the same level as she did prior to the collision.
At the time of the trial, the plaintiff was 51 years old. She had grown up in Toronto and attained a Bachelor of Applied Science in applied Human Nutrition and then completed a clinical dietetic internship. She subsequently worked as a clinic dietician and later developed a private practice as a nutrition consultant focusing on eating disorder clients. In 1990, she and her husband moved to Okanagan, B.C. where she continued developing wellness programs. The plaintiff was employed by the Canadian Mental Health Association (CMHA) for almost 22 years, and also led a program for the eating disorder clinic in Okanagan. The majority of the plaintiff’s clients were referred to her by physicians, psychiatrists and other health professionals, and she had an impressive resume with respect to the number of workshops and training she attended throughout her career. A psychiatrist, Dr. Smith, who was associated with the eating disorder program for many years testified that the plaintiff has a very high work ethic; is “the heart of the clinic’; “incredibly committed to her patients and the community; and was engaged in several uncompensated roles, such as managing the eating disorder clinic. He also testified she was a very high energy and positive person with a full practice, before the motor vehicle accident (MVA).
Since the MVA, the plaintiff suffers from chronic myofascial pain, a condition from which she is unlikely to recover, according to the testimony of several medical practitioners. Myofascial pain syndrome is a chronic pain condition where pressure on sensitive points (trigger points) in a person’s muscles produces pain in other areas of the body that seem to be unrelated. The best the plaintiff can hope for is that some of her symptoms may be alleviated. The following symptoms were documented by a neurologist to whom she was referred in 2014, at the request of the defendant.
- Constant cervical/neck pain that radiates into her left shoulder and arm
- Chronic thoracolumbar/back pain, with numbness and tingling
- Headaches that are almost daily and often severe, causing nausea and sensitivity to light and noise
- Sleep disruptions
- Mood swings
- Light-headedness in the morning
- An increase in blurred vision, which requires stronger prescription glasses
- Cognitive difficulties, effecting her memory, multitasking, ability to concentrate and processing speed
Medical evidence substantiated that her symptoms are not likely to improve. Also, her life was profoundly affected by the accident. She was a leader in her field and committed to her patients, and sacrificed a more lucrative income in full-time private practice to spend more time in CMHA helping those in need. She continued to work as much as she could after the accident so that patients could have treatment, despite the physical and emotional toll it took on her health. Her injuries forced her to reduce her role in treating the eating disordered, and she can no longer serve in volunteer positions, teaching and continued education, which she enjoyed and found fulfilling before the accident. Before the MVA, she was extremely active in skiing, running, gardening, cycling and water-skiing, but was forced to give up these and many other activities she enjoyed. The plaintiff is also no longer able to carry out many housekeeping activities and common chores, particularly heavier tasks such as vacuuming and taking out garbage.
Determination of damages
The judge in this case found the plaintiff to be a very credible and forthright witness, and was impressed by her efforts to continue to do her best when many others would have given up. In order to make a determination on general damages, Justice Loo referenced a number of cases in which plaintiffs suffered similar injuries and losses, particularly Kwong v. Leonard (2012) and Stone v. Ellerman (2007) where the plaintiffs were awarded $75,000 and 100,000 respectively. The judge awarded the plaintiff $90,000 in general damages for pain and suffering, inconvenience and loss of enjoyment in life.
A major area for disagreement on damages between the defendant and plaintiff was the plaintiff’s claim for income loss from her private practice. However, Justice Loo found that the evidence provided by Dr. Smith and the plaintiff revealed that she is an exceptional clinician and there is a significant demand and waiting list for her services. Justice Loo concluded that the plaintiff proved that there was a substantial and real impact on her earning capacity due to the MVA. The judge considered several factors in determining the appropriate amount for future loss of earning capacity. One of the most relevant factors was the fact that the plaintiff’s chronic headaches, nausea, pain in her neck, shoulder and arm, and regular rehabilitation treatments meant that she was forced to reduce her number of private practice hours. However, Justice Loo also assumed that she would likely reduce the number of hours she works as she nears retirement.
In total, the plaintiff was awarded almost $670,000 in damages, including the following:
- Non-pecuniary/general damages: $90,000
- Past lost income: $45,907
- Future loss of earning capacity: $475,000
- Loss of housekeeping and home maintenance capacity: $45,000
- Cost of future care: $5,000
- Special damages: $9,000
The awarded damages reflect the fact that the plaintiff suffered a permanent partial disability that has significantly impacted her life. Also considered by the judge, is the plaintiff’s sincere attempts to regain her previous level of employment, only to find she was unable to do so, as well as her best efforts to facilitate rehabilitation and recover from her injuries. The credible and substantive evidence given by the plaintiff and the medical experts who treated and/or assessed the plaintiff’s injuries, also supported the judge’s findings in this case.
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