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Kennedy v. Cumming: Motorcyclist Receives $360,000 in Damages Following Accident


Motorcycle accidents frequently result in devastating injuries, as the motorcycle rider obviously lack the protection of a car or truck driver to absorb the impact. Consequently, accident victims may find themselves restricted in their ability to work or perform the activities of daily living for months or years after the collision. Such limitations need to be taken into account when assessing a negligent motorist’s liabilities for the accident itself.

A recent decision from the B.C. Supreme Court, Kennedy v. Cumming, offers some insight into how judges look at these types of cases. This personal injury lawsuit arises from an April 2015 motorcycle accident. The plaintiff, who was 64 years old at the time, was an avid motorcyclist. On the day of the accident–April 30, 2015–he was in Kamloops on a break from his job as a truck driver.

Around 1 p.m. that afternoon, the plaintiff was riding his Harley Davidson down the Trans-Canada Highway thru the Valleyview section of Kamloops. He exited the highway and made a left turn onto Vicars Road, with the intention of stopping at a Chevron Station located on Frontage Road, which runs parallel to the highway. As the plaintiff rode down Vicars Road, a motorist–the defendant–was driving westbound on Frontage Road. She failed to yield at the intersection of Vicars Road and Frontage Road, and the front of the plaintiff’s motorcycle subsequently collided with the back door of the defendant’s car.

The impact ejected the plaintiff from his motorcycle and caused him to land on his back. An eyewitness told the court the plaintiff was “flipped off his motorcycle higher than the car” and sustained a “hard hit.” Doctors later determined that the plaintiff “suffered a moderate compression fracture in his L2 vertebrae with 25% loss of vertebral height.” In his subsequent personal injury lawsuit against the defendant, the plaintiff also alleged that the accident left him with chronic lower back pain and “shooting pain and numbness in his thighs.”

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Although the defendant conceded liability for the accident, she contested the “nature, extent, and duration” of the plaintiff’s injuries. In particular, the defence argued the plaintiff’s lower back pain was the result of preexisting degenerative disease. In response, the plaintiff maintained that he “was not suffering from any low back pain prior to the accident.”

Determining the Plaintiff’s Loss of Past and Future Income

Justice Emily Burke of B.C. Supreme Court in Kamloops conducted a trial on damages during March 2019. On June 17, 2019, she issued her judgment. She agreed with the plaintiff that his lower back pain was a result of the accident rather than any preexisting condition. The judge further credited the testimony from medical experts who said the plaintiff would likely “suffer from back pain indefinitely.”

This and other accident-related symptoms also had a demonstrable effect on the plaintiff’s ability to continue working as a truck driver. One doctor told the Court the plaintiff would likely be unable “to tolerate prolonged sitting or exposure to vibration resulting from driving over bumpy roads.” Unlike other professions, truck driving does not have any “light duties” for someone like the plaintiff to transition into. Indeed, Justice Burke noted the plaintiff could not return to work at all for more than nine months after the accident, leaving him “essentially bankrupt and forced to sell his assets to meet his basic needs.” While the plaintiff did eventually resume working, his employer has had to make special accommodations. For instance, the plaintiff’s co-workers need to perform certain basic tasks that would otherwise be his responsibility.

Justice Burke ultimately calculated the plaintiff’s past loss of income due to the accident at just over $58,000. With respect to future loss of income, the judge concluded that but-for the accident, the plaintiff (who is now 68) would likely have continued working at his full capacity until the age of 75. That is now “improbable,” and based on the plaintiff’s average earnings over the past few years, the judge said an award of $174,000 was appropriate to compensate the plaintiff for his future lost income.

Damages for Pain, Suffering, and Loss of Enjoyment of Life

The Court also addressed the plaintiff’s request for non-pecuniary damages to compensate him for his pain and suffering as a result of the accident. At trial, the plaintiff asked for $135,000 in non-pecuniary damages. The defence argued an award of between $50,000 and $80,000 would be sufficient.

Justice Burke explained that while there was no precise formula for assessing non-pecuniary damages, the B.C. Court of Appeal has “outlined a number of factors to consider including age, nature of injury, severity and duration of pain, impairment of life, impairment of family and social relationships, and impairment of physical and mental abilities, amongst others.”

As described above, the plaintiff does now require special accommodations to continue working. The court also noted that the plaintiff, who lives alone, continues to have difficulty performing basic housekeeping tasks due to his pain. He is also unable to pursue some of his pre-accident interests, such as snowmobiling and riding and keeping horses. In summing up, Justice Burke said the plaintiff “is a stoic individual who has tried to cope with the ongoing impact of his injuries.” But he was simply “unable to do what he once did.” On that basis, the court awarded the plaintiff $110,000 in non-pecuniary damages.

The court’s final award came to approximately $370,000, which includes damages for the cost of the plaintiff’s likely future medical care and a small amount of special damages previously agreed upon by the parties.

Have You Been Injured in a B.C. Motorcycle Accident? Call Preszler Injury Lawyers Today

Money does not make up for someone’s inability to enjoy the same lifestyle as they did prior to an accident. But it can provide critical resources to help the victim rebuild their life, especially if their injuries restrict or eliminate their ability to work.

If you have been seriously injured in a motorcycle accident, a Kamloops personal injury lawyer can assess your case and advise you on the appropriate legal steps to take. Contact Preszler Injury Lawyers today to schedule a free consultation with one of our lawyers today.

Source:

https://www.canlii.org/en/bc/bcsc/doc/2019/2019bcsc983/2019bcsc983.html

 

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