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Case Summary: D.J.W. v. Biswal, 2023 BCSC 148

The Honourable Justice Veenstra recently rendered his decision in the Supreme Court case of D.J.W. v. Biswal, 2023 BCSC 148. The court awarded the Plaintiff $976,043. ICBC argued the Plaintiff should receive as little as $40,000 plus some out-of-pocket expenses.

In this complex case involving a minor, senior counsel Nathaniel Hartney and Craig McIvor were able to secure a large and fair judgment for our client. It is a proud accomplishment for Preszler Injury Lawyers and, most importantly, for our young client.

The Plaintiff was involved in a motor vehicle accident on June 16, 2017, when he was only 12 years old. He was being driven by his mother when their vehicle was rear-ended by the Defendant. As a result, the Plaintiff suffered physical and psychological injuries, which are ongoing.

At the time of the trial, the Plaintiff was 17 years old and about to graduate from high school.

There were two main points of contention between the parties. The first related to causation and the prognosis of the Plaintiff’s injuries. The second related to the assessment of damages, particularly for an award for non-pecuniary damages, loss of housekeeping capacity, and loss of future income.

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The Plaintiff relied on three medical experts to give evidence regarding the diagnosis, prognosis, and treatment of the Plaintiff’s injuries. The experts included two physiatrists, and a clinical psychologist and neuropsychologist. All of these experts agreed that the Plaintiff’s ongoing physical and psychological symptoms were caused by the accident.  

The Defendant argued that the experts came to this conclusion improperly. They asserted that, even though the Plaintiff’s symptoms arose after the accident, they were not a direct result of it. 

The Defendant conceded that the accident caused soft-tissue injuries. However, they argued that these symptoms resolved within a year. The Defendant argued that the Plaintiff had pre-existing undiagnosed emotional, psychological, and psychiatric issues that would have been present through various stressors in life, regardless of the accident. There was also disagreement that the Plaintiff suffered a concussion as a result of the accident.

Justice Veenstra stated the following:

[200] The suggestion that there was no concussion, contrary to the opinions of both Dr. Chow and Dr. Shultz, and based simply on the absence of specific reference to it in two of the clinical records, simply ignores the balance of the evidence which clearly supports a finding that a concussion occurred in the MVA. 

[205] The Defendant argues the conclusions of the experts as to causation in this case rely excessively on the temporal connection between the MVA and the various symptoms experienced by the Plaintiff subsequent to the MVA. In this case, the evidence at trial indicated that the Plaintiff had continued to experience those symptoms even during that year when he did not see Dr. Korn. The fact that the Plaintiff has consistently experienced these symptoms, and the absence of any alternative cause, in my view appropriately grounds a finding of causation.

[211] In my view, the evidence leads to a conclusion that, but for the MVA, the Plaintiff would not have suffered the depression, stress and somatic symptom disorder that were identified by Dr. Schultz. The symptoms underlying those issues are closely tied to the MVA and the pain burden and resulting lifestyle changes that flowed from it.  

Non-Pecuniary Damages

Due to the serious and ongoing nature of the Plaintiff’s injuries, Preszler Lawyers argued that he should be entitled to a large award for pain and suffering. His injuries have impacted his education and vocational prospects, and his ongoing physical and psychological symptoms have disrupted his personal and athletic life. 

The Defendant argued that he was entitled to only a modest award, based on their theory on causation. ICBC’s tactics did not work. The court rejected the Defendant’s theory on causation and rightfully awarded the Plaintiff a large sum. 

Under this head of damage, the court included an award for loss of housekeeping capacity. The Plaintiff currently resides at home and has significant family support with respect to housekeeping. 

At para 240, Justice Veenstra notes that, “it seems likely that his transition to independent living will be delayed, and that even when he does so, he will continue to require significant support.” This award was made with respect to the external support the Plaintiff will need from time to time once he is living independently. In determining the amount of support, his young age and prognosis of ongoing pain and restrictions were taken into account, and the present value multiplier for loss was applied up to the age of 70.  

Loss of Future Earning Capacity

The accident’s impact on the Plaintiff’s vocational prospects was a significant element of this trial. The Plaintiff has not yet entered into the workforce, but he had dreams of working with sheet metal, like his father.   

To assess future loss of earning capacity, the court uses the three-step process established in Rab v. Prescott, 2021 BCCA 345

  • Whether the evidence discloses a potential future event that could lead to a loss of capacity, such as chronic injury. 
  • Whether, on the evidence, there is a real and substantial possibility that the future event in question will cause a pecuniary loss.  
  • If such a real and substantial possibility exists, then the value of that possible future loss must be assessed.  

The Plaintiff suffered a loss to his ability to earn income. He is less competitively employable and marketable to future employers due to his injuries and limitations. The Plaintiff’s loss should be based on the assumption he would have been a sheet metal worker, but for the accident. This loss should be calculated based on 80% of the total in order to account for his injuries and limitations, while leaving room for the fact he could recover and work the physical part-time job in the future.  

However, the Defendant argued that the Plaintiff failed to establish any real and substantial possibility of future income loss. The Defendant argued that the Plaintiff’s injuries will not affect his ability to work, and he should therefore be awarded nothing for loss of future earning capacity. The Defendant held the position that the Plaintiff’s pain is subjective and there is no reason why he could not be able to work through his pain. As an alternative, the Defendant suggested that he should be awarded the modest sum of $50,000. 

Once again, ICBC’s strategies were unsuccessful in court. Justice Veenstra rejected the Defendant’s submission that no loss had been established, also asserting that the award they came up with was not grounded in any extensive expert evidence. 

Justice Veenstra found the Plaintiff suffered a loss of his earning capacity and he will require accommodations in any employment, which will ultimately affect his competitive employability.  

This decision is another win for a deserving client of Preszler Injury Lawyers.

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