Case Summary: Ponych V. Klose, 2023 BCSC 1504

The Supreme Court of British Columbia recently rendered its decision in the case of Ponych v. Klose, 2023 BCSC 1504. The Court awarded our client over $1.95 million in damages. 

Judgments over $1M are rare, making this a significant win for Preszler Injury Lawyers and our deserving client.

The case involved a car accident that occurred on December 11, 2017. Our client was 42 at the time of the accident and was the successful owner and operator of a mid-size painting company. As a result of the accident, he sustained a mild-traumatic brain injury (mTBI), chronic headaches, chronic pain, sleep issues, psychological illnesses including anxiety and depression, and cognitive changes including memory loss and mood dysfunction.

The Defense argued that the Plaintiff did not suffer a brain injury as a result of the accident, but rather suffered from initial soft-tissue injuries with related headaches that worsened over time. The Defense attacked the Plaintiff’s credibility, arguing that he overstated and catastrophized his symptoms and their impact on his daily life. 

The Court properly did not accept ICBC’s arguments, and found the plaintiff to be a credible witness who suffered an mTBI based on both overwhelming medical evidence and evidence from people who knew him well.

The Defense further argued that the Plaintiff was entitled to a modest award for past wage loss and loss of future earning capacity. Being the sole breadwinner for his family – a wife and one young daughter with special needs – the Plaintiff took one day off work following the accident before returning to his business. The Plaintiff worked for five years and eventually had to sell his company due to his injuries; he simply could not continue working. 

The Defense argued that the Plaintiff could clearly continue working, but only perceived himself to be unable to work. We strongly disagreed, and the Court sided with the Plaintiff.

Credibility

The Court accepted that our client was credible, noting: 

[31] I find Mr. Ponych’s testimony was forthright, in both direct and cross-examination. He admitted to memory and concentration issues, and struggled through both direct and cross-examination. While there were a number of inconsistencies in his evidence, I find they were minor in nature. When these inconsistencies were put to him in cross-examination, he continued to do his best to testify in a forthright manner and notwithstanding he clearly struggled. He never denied there were inconsistencies, nor did he attempt to either change his evidence, or justify the inconsistencies in any manner. In all of these circumstances, the defendant pointing to specific, and minor, inconsistencies in his testimony does not cause me concern, nor does it cause me to find Mr. Ponych to be unreliable.

[32] The Accident occurred over five years ago. Since then, Mr. Ponych has been in chronic pain and struggled with multiple symptoms arising from his injuries, including those arising from his mTBI. For most of that period, Mr. Ponych was either on medication or using medical marijuana. In my opinion, the minor inconsistencies are understandable, and, when looking at the evidence as a whole, they are not material. I find Mr. Ponych to be a credible and reliable witness.

[33] I also note that Mr. Ponych’s evidence was corroborated by the evidence of his wife. Ms. Ponych gave clear and corroborating evidence to the daily impact his injuries have had on his life, mood and recreational activities, and on their family.

[34] I do not accept that Mr. Ponych displayed any tendency to catastrophize his symptoms, nor their impact on his life.

Loss of Earning Capacity

The main part of the case revolved around our client’s loss of future earning capacity. Being unable to run his business led to significant financial losses for him and his family, especially since his wife could not work because she cared for their disabled daughter. The Court noted the following:

[288] I have already set out my finding that Mr. Ponych suffered from an mTBI, and suffered cognitive difficulties as a result. I have also set out my determination that while Mr. Ponych made significant efforts to retain Sherwood; ultimately, his injuries as a result of the Accident led to his reasonable decision that the only option left to him was to sell his business…

[289] I cannot accept the defendant’s argument that Mr. Ponych suffers from a subjective apprehension about his ability to work. Rather, he worked diligently to attempt to retain the business, and the injuries as a result of the Accident frustrated his stoic efforts. I find he has established a real and substantial possibility that he will be unable to work to the level he did at Sherwood, or even at close to that level, which leads to a loss of his capacity. I am satisfied, on the totality of the evidence, he has established that there is a real and substantial possibility that this will cause him a pecuniary loss…

[296] … Accordingly, I award him $1,261,000 as an award for his loss of future earning capacity. In these circumstances, given Mr. Ponych’s age, his physical and mental impairments and their chronic nature, I find this award to be fair and reasonable.

The Court ultimately awarded the Plaintiff the following under the various heads of damage:

•  $250,000 for pain and suffering;
•  $255,955 for loss of past earning capacity;
• $1,261,000 for loss of future income earning capacity;
•  $86,787.08 for cost of future care;
• $68,487 for loss of homemaking capacity; and
• $35,861.83 for special damages.

This case is another example of ICBC attempting to undermine a truthful Plaintiff’s credibility at Trial. Once again, this tactic proved unsuccessful. 

Preszler Injury Lawyers worked hard to ensure the Court understood who the Plaintiff was before and after the accident to illustrate the real losses he and his family suffered. 

Congratulations to our deserving client!