09 Sep Compensation for Perceived Disability

In the case of Agar v. Leonard, 2016 BCSC 1430, the Plaintiff was proceeding through an intersection when the Defendant suddenly turned left in front of her. She was unable to avoid the collision and hit the side of the Defendant’s vehicle. The Defendant admitted liability for the accident but challenged the Plaintiff’s claim for damages.

At the time of the trial, the Plaintiff still had some headaches and minor soft tissue injuries but she had developed a perception that she was totally disabled and could not return to work.  The consensus among the Plaintiff’s physicians was that her physical injuries were not particularly serious but that she believed that her injuries were bordering on catastrophic, and she believed that she could never be employed again.

The main issue at trial was whether the Defendant needed to compensate the Plaintiff only for her medically proven injuries or compensate her to the level of her ‘perceived disability’.

The Court found that the Plaintiff was not credible; she was inconsistent in describing her symptoms to her physicians and she often exaggerated her injuries.  Nevertheless, the Court held that as a result of the accident the Plaintiff had developed a dissociative disorder which caused anxiety and depression, leading to the Plaintiff’s perception of a severe disability.

The established law is that psychological problems will be compensated if they are beyond the Plaintiff’s power to control and are set in motion by the Defendant’s wrongful act.  If this is proven, the Plaintiff is entitled to recover damages for the entire loss caused by the psychological problems.

Madam Justice Hyslop stated that “Ms. Agar perceives that she is disabled and unable to function.  It is real to her.  I find that this condition is a result of the motor vehicle accident in which she was involved.”

The Plaintiff would not have developed this psychological disorder had the accident not occurred, so the Defendant had to compensate her to the level of her perceived disability.

The Plaintiff was awarded $500,000 for lost earning capacity on the basis that after a few more years of psychological counselling her perception of her disability would subside and she could return to work in a reduced capacity.

The Plaintiff received the following award:

Non-pecuniary damages:            $110,000.00

Past wage loss:                              $167,094.00

Loss of earning capacity:              $500,000.00

Special damages:                          $21,244.38

Cost of future care:                       $113,862.37

Total:                                               $912,200.75