Case Summary: Murray v. Doe, 2023 BCSC 918

The Supreme Court of British Columbia recently provided its decision in the case of Murray v. Doe, 2023 BCSC 918.  This case boiled down to a question of damages for pain and suffering arising from a motor vehicle accident that occurred on September 17, 2017. The Honourable Justice Kirchner awarded our deserving client $89,517.38 for her pain and suffering, cost of future care, and out-of-pocket expenses.  

Our client was sitting in her parked vehicle in downtown Vancouver when the defendant driver backed a rental van into her car. The force of the impact was strong enough to cause her to suffer from headaches, neck and shoulder pain, depressed mood, and sleep disturbances nearly six years later.  

The Plaintiff had some health issues before the accident. In 2016, she was involved in a prior accident resulting in neck and back pain that had already resolved before the accident in question. She also suffered from some anxiety-induced insomnia.  

Ms. Murray is a stoic and hard-working woman who did not complain about her health issues, nor did she let it affect her work and personal life. She is skilled in all aspects of home renovation and would take on all kinds of projects on her own.  

The Defendants disagreed with the extent to which the Plaintiff’s injuries affected her day-to-day functioning and enjoyment of life. The Defendants further argued that unrelated medical conditions, such as a torn meniscus in 2017 and a broken wrist in 2022, contributed to the Plaintiff’s functional limitations and depressed mood. The Defendants sought a discount for her pain and suffering – an argument the Court rejected.  

The Court provided the following reasons.  

NON-PECUNIARY DAMAGES 

[46] I find that Ms. Murray is experiencing chronic pain in her neck and sho9uolder and daily headaches that relate to the neck pain and, as the experts agree, the accident was the cause of these chronic conditions. Ms. Murray did not suffer these problems chronically before the accident. She had experienced some neck and back pain following her 2016 accident but there was no dispute on the medical evidence that this was fully resolved by the time of the 2017 accident. I find it significant that Dr. Acharya, the defendants’ expert physiatrist, did not consider these to be factors in Ms. Murray’s present condition.  

… 

[57] I find that Ms. Murray is capable of doing many of the things she did prior to the accident, including walking, golfing (with some adaptation), riding her bike (though now an electric bike) without difficulty. I accept that she is unable to run or do home renovation work without experiencing pain. I accept Dr. Acharya’s opinion that her condition does not make her physically incapable of these activities. The medical evidence respecting her range of movements satisfy me that she is physically capable of doing these. The problem, as Dr. Acharya willingly acknowledge, is the extent to which she is prepared to tolerate pain while doing so. The fact she cannot do these same activities without suffering pian is certainly compensable. It is evident that the pain she experiences while attempting some of these activities – like running or home renovations – is enough for her to find no more enjoyment in these activities.  

CONTINGENCY DISCOUNTS AND MITIGATION 

[70] The defendants argue that there should be contingency discount to Ms. Murray’s non-pecuniary damages claim on the basis that she suffered pain and loss of enjoyment of life from her torn meniscus and broken wrist. I do not accept this. Both experts, including the defendants’, confirmed that Ms. Murray fully healed from both injuries and neither is expected to cause problems for her in the future. There is no medical evidence of a real and substantial possibility that they will cause her problems in the future. In fact, the medical opinion is that they will not. I see no basis for a contingency discount to the non-pecuniary award for these items.  

SPECIAL DAMAGES 

[79] The deep cleaning of the Biggar house and some of the renovation work was needed because of the state in which the previous owner had left it. He was an elderly gentleman who lived alone and struggled with incontinence. Ms. Murray said a very thorough and deep clean of the house was needed before she could move in and the floors had to be replaced. The claim for drywall and painting work related to renovation work that was needed on the home. Ms. Murray paid her brother to do this work. Her claim is for labour only and not materials.  

[80] Were it not for her accident injuries, Ms. Murray would have done all of this work herself but was unable to do so without significant pain. I accept her evidence on this point. As I have said, she takes particular pride in being skilled at home renovations and I fin that she would much rather have done the work herself and would have done so if she felt she could manage the pain. I also accept she would have done the deep clean of the house had she been able to without significant pain.  

The Court recognized the type of person Ms. Murray is – stoic, hardworking, and not one to shirk her responsibilities. Understanding who our client is as a person is essential to any case. This understanding allowed the Court to see exactly how she was affected by an accident. Ms. Murray should not be punished for her stoicism, which the Court rightly recognized.  

ICBC tried to advance arguments for a deduction of her non-pecuniary award for untreated medical conditions. This tactic of trying to shift the blame onto something else is commonly used by insurance companies to minimize the award for a Plaintiff’s injuries. This argument fell flat, as there was no medical or expert evidence to support it. Our client received the full award she rightfully deserved.  

Congratulation to counsel, Mia Zanic, on her first win at Trial!