Gavel

Reasons for judgment were released yesterday in the case of Virk v. Robertson a case involving determination of damages for a 27 year old woman who was injured in a motor vehicle accident that had occurred three years prior to trial.  The first task for the trial judge is to determine what injuries, if any, were caused by the motor vehicle accident.  That analysis is governed by a test articulated by the BC Court of Appeal in the decision of Farrant v. Latkin, 2011 BCCA 336.  In that decision, the test was described as follows:

[8]  To justify compensation for his disabling pain, the plaintiff must establish a causal connection between the defendant’s negligence and that pain.

[9]  The general test for causation, established in Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13 – 17 is the “but for” test:  “but for” the accident, would the plaintiff have suffered the disabling pain?  In Athey, the Court also stated that a plaintiff need not establish that the defendant’s negligence was the sole cause of the injury.  If there are other potential non-tortious causes, such as the plaintiff’s spinal degeneration in this case, the defendant will still be found liable if the plaintiff can prove the accident caused or materially contributed to the disabling pain, beyond the de minimums range.

[11]  Thus, in applying the “but for” test, the trial judge was required to consider not just whether the defendant’s conduct was the sole cause of the plaintiff’s disabling pain, but also whether the plaintiff had established a substantial connection between the accident and that pain, beyond the de minimus level.

The trial judge in Virk found that at the time of trial three years after injury the plaintiff’s injuries remained somewhat limiting.  She would be less competitive in the work place as she would require some degree of accommodation, she would find it difficult to work longer hours and her ability to meet the demands of managerial work were now compromised due to her injuries.  The prognosis for recovery from the injuries was poor and they were continuing to significantly impact her enjoyment of life.  The injuries had also caused emotional distress which was having a negative impact on her relationship with her family.  The injuries impacted all areas of the plaintiff’s life, including the joy that she previously got from her work.  Damages for pain and suffering were assessed at $70,000 and damages for future loss of income earning capacity were assessed at $50,000.