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Case Summary: Page v Roy, 2022 BCSC 1802

The case of Page v Roy, 2022 BCSC 1802, arose from a motor vehicle accident that occurred on February 23, 2017. The plaintiff was 54 years old at the time of the accident.

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Non-pecuniary Damages

As a result of the accident, the plaintiff sustained injuries to her neck and back, as well as headaches. The defendants argued that several of her injuries were unrelated to the accident, not as severe as she had claimed, or pre-existed the accident. As such, the defendants argued that the plaintiff’s non-pecuniary damages should be reduced to account for pre-existing issues.

The defendants were ultimately unsuccessful in this argument. Despite the court determining that the plaintiff’s injuries were not severely debilitating, the plaintiff was awarded $100,000 in non-pecuniary damages.

Failure to Mitigate

A plaintiff has a duty to mitigate, which requires them to take reasonable steps to minimize their damages and losses. The court reviewed the law on the duty to mitigate: 

[56] A plaintiff in a personal injury action has a positive duty to mitigate. The defendant bears the burden of establishing 1) that there were steps the claimant could have taken to mitigate; 2) that those steps were reasonable; and 3) the extent, if any, to which the loss would have been avoided by taking those steps… 

The defendants argued that Ms. Page failed to mitigate by foregoing kinesiology and failing to take medications. While kinesiology was recommended by one of the expert physicians in their medical-legal report, the court held that this was not enough for the defendants to meet their burden to prove a failure to mitigate. 

Regarding medication, there was evidence that a physician had provided her with a prescription for Tylenol 3 which she did not fill because she was worried about liver damage. In rejecting the failure to mitigate argument pertaining to medication, the court held that the defendants did not establish that Ms. Page acted contrary to medical advice, nor did they establish that, had she taken the Tylenol 3, her condition would have been different.  

Past Wage Loss

At the time of the accident, the plaintiff was working as an educational assistant (EA) and a cleaner. She continued as an EA until 2019. The defendants attempted to argue that the plaintiff was not entitled to an award for past wage loss because there was no evidence that her accident-related injuries caused her to leave her position as an EA. 

They also argued that she was not entitled to compensation because no medical doctors had told her that she couldn’t work as an EA. In essence, the defendants argued that the court should not believe that Ms. Page’s work as an EA triggered or aggravated her accident injuries.  

In rejecting these arguments, the court ultimately held:  

[123]   With regard to the lack of medical evidence, I do not accept that there must be evidence that a medical doctor has advised a plaintiff against continuing in a certain line of work in order for the plaintiff to prove a real and substantial possibility of a loss. There are many cases where, as in this case, the plaintiff tries to do pre-accident work unsuccessfully or perseveres in pre-accident work despite pain and then leaves that work because he or she cannot continue with it. People do not need a doctor to tell them that working in pain causes pain. Even if there is no medical downside to such perseverance, it is reasonable for a person to not do work that causes or aggravates pain due to accident injuries. 

Loss of Earning Capacity

After leaving her position as an EA in 2019, Ms. Page began tutoring students until the COVID-19 pandemic eliminated this opportunity. From July 2020 to April 2022, the plaintiff worked as a COVID assessor. In short, the plaintiff spent very little time unemployed following the accident.  

Future loss of earning capacity, which is compensation for a reduction in earning ability, was perhaps the most contentious issue at trial. The defendants submitted to the court that the plaintiff did not establish a basis for awarding future loss of earning capacity. 

Our team successfully convinced the court that the plaintiff’s future earning capability had been negatively impacted by the accident.  

This case demonstrates that you do not need to miss months of work following an accident in order to receive compensation for future income loss. Ms. Page was awarded $322,441.78 in total at trial. A big congratulations to our client on her complete success at trial!

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