A 33-year-old Greater Victoria man was awarded $2.9 million in B.C. Supreme Court after three separate car crashes that led to chronic pain and a reduced capacity to work in his physically demanding job.
Cody Grant Moen argued in a personal injury case that his chronic pain and financial worries have also led to mental health struggles, including suicidal ideation and problems in his marriage.
“The plaintiff’s relationship with his wife now has serious problems and he is deeply worried she will not stay with him if they do not have a child soon, something he would very much like to occur if he were healthy but which he does not think he can now afford: 'I am so lost, I do not know what is in my future or how I can afford to keep my house,' ” B.C. Supreme Court Justice Nigel P. Kent quoted the man in his judgment.
Moen sued the drivers involved for damages.
The defendants formally admitted fault for each of the incidents and acknowledged Moen had suffered serious injuries. The three defendants are all B.C. residents insured by ICBC, which appointed a single law firm to represent them.
However, the plaintiff and defendants disagreed on the amount of damages appropriate, with Moen asking for $5 million and counsel for the defendants saying $385,000 to $475,000 would be adequate.
Moen was 25 years old on May 5, 2016, when he was rear-ended by a vehicle in Langford after stopping to let a transit bus pull out in front of him. He described it as a “fairly big impact” that caved in the bumper of his truck, according to Kent’s judgment.
Moen noticed soreness in his neck and leg but didn’t think it was a big deal, so he didn’t go to the hospital, Kent wrote.
Two days later, a learner driver reversed into the front of his truck as he waited to exit a parking lot. He felt sore again, but didn’t think much of it.
When he attended a clinic a few days after the second crash, he was told he had whiplash. He was experiencing pain on both sides of his neck and in his lower back. Moen didn’t recall the treatment he was prescribed and he continued working 60 to 70 hours per week in his renovation job.
He noticed after some time that his injuries were not getting better and he was struggling with physical tasks he had previously had no trouble with, like sledgehammering or digging holes, Kent wrote.
The projects started to take longer and Moen began making mistakes. After moving into excavation work, his pain continued and he started turning down jobs because of the pain, Kent wrote. Moen testified he didn’t tell his clients about his injuries because he didn’t want people to think he wasn’t capable of the work.
On Dec. 18, 2018, Moen was rear-ended again and immediately felt a sharp pain down his left leg. The crash severely aggravated his physical symptoms and his mental health suffered, Kent wrote.
“He takes medication which ‘dulls the pain and helps me cope’ but it also affects his memory, focus and concentration. He has become deeply depressed.”
A psychologist told Moen his work was not allowing his body to heal, but Moen could not afford to stop working.
“The plaintiff firmly believes, and stated at various different places in his testimony, that if these car accidents and resultant injuries had not occurred, he would have been fully able, both mentally and physically, to establish a successful excavation and snowplowing business at which he would have worked at least 60 to 70 hours a week and derived a substantial income as a consequence,” Kent wrote.
“He is convinced that he would not have had to rely upon his father as extensively as he did, or perhaps at all, not only for assistance in his business undertakings but also for repairing and maintaining the house he purchased with his wife,” Kent wrote.
Over a two-week trial, Moen testified for four days and called 11 witnesses, including his wife and father, a neurosurgeon, a psychiatrist, a work capacity assessor, his chiropractor, an expert economist, the plaintiff’s accountant and two people who testified about their successful ventures in the heavy equipment field Moen was employed in.
The credibility of a plaintiff can be critical in a case like this, Kent wrote. Moen’s behaviour appeared impacted by his pain, Kent wrote, as he constantly moved around, stood up and frequently lost concentration and focus. He admitted to taking as many as six tablets of Tylenol 3 pain medication on each day he testified. His memory was, unsurprisingly, sometimes poor and his testimony was vague, Kent wrote.
The issue was complicated by Moen’s learning disability, which impacts his ability to read and write. His challenges in school led to him dropping out in Grade 9 and he has always worked in physical jobs, such as landscaping, construction and most recently heavy equipment excavation and snow-removal.
Moen’s lawyer argued he has a tendency to understate his limitations and he continues to “soldier on at work through debilitating pain and increasing doses of painkillers. This is not the behaviour of a malingerer or litigation-conscious plaintiff,” according to the judgment.
Kent wrote he had no doubts about Moen’s honesty about his physical injuries and chronic pain and that his injuries and disability were confirmed by all medical experts.
He awarded Moen $2.9 million, including $2 million for future loss of earning capacity.
