Penticton woman awarded $209,000 in damages after 2016 rear-ender

Photo: Eric Thompson

A B.C. Supreme Court judge has awarded a 52-year-old Penticton woman $209,142.73 in damages following a rear-end crash on Aug. 24, 2016.

Around 4 p.m. that day, Daina McGahan (the plaintiff) was driving southbound on Government Street on her way to pick up her son from day camp. As she was driving along, she noticed the defendant (Alicia Selock) come out from a side street and turn into the same lane behind her.

McGahan stopped at a pedestrian crossing to allow a man to cross. It was at that point Selock's vehicle hit her from behind, according to a June 30 ruling. Although she didn't see Selock approach, McGahan assumes she was going about 40 km/h.

The women exchanged insurance information and McGahan continued on to pick up her son.

When McGahan got home, she felt pain in her neck, as well as in her upper and lower back, court documents show. She saw her family doctor the following day. 

Many of McGahan's symptoms largely resolved within three to four months; however, she continues to suffer from nearly constant lower back pain, according to court documents.

"Some days are better, but she has no totally pain-free days. This back pain becomes worse sitting or standing for more than an hour or two. It gets a bit better in the afternoons," reads the ruling.

Justice Ward Branch issued the following damages: $75,000 for general damages; $120,000 for future loss of capacity; $5,000 for future cost of care; and $9,142.73 for special damages.

McGahan grew up in Brisbane, Australia, where she worked as a lawyer for 14 years. She moved to the Sonoma region of California so that her husband Philip could further pursue his career in winemaking, court documents state. While he was working, McGahan studied for the California bar exam while working in various paralegal and retail jobs. She also wrote case summaries for an Australian legal publisher on a contract basis. 

McGahan narrowly missed passing the test twice. Given her age and inability to work as a lawyer, the couple decided to have a child.

"As Mr. McGahan's job was very demanding, the plaintiff focused on raising their son and managing the home over the next few years. She stopped writing case summaries," Branch writes.

The family relocated to B.C. in July 2013, after Philip gained employment at a new winery near Oliver.

Branch notes that in March 2016, McGahan began doing some administrative work for the winery, earning $1,000 per month for 50 hours of work. The majority of her time was still spent caring for their son.

"The plaintiff says (and her husband confirms) that from the time she arrived in Canada, she was contemplating a return to work as a lawyer. She says that being a lawyer was and is a large part of her identity. Mr. McGahan says he also contemplated that the plaintiff would return to work as a lawyer at some point, and that this prospect did come up regularly," Branch says.

When assessing loss of future earnings, Branch concludes there was a "real and substantial possibility" that McGahan would have returned to work as a lawyer at some point.

"The plaintiff has worked very hard her entire life, whether at university, as a lawyer, preparing for the California bar examination, or caring for her child. There is little prospect that she would have now suddenly decided to adopt a life of leisure."

For general damages, which are awarded for pain and suffering, McGahan sought $120,000 plus $20,000 for loss of housekeeping capacity. Selock suggested $45,000. Branch settled on $75,000.

Special damages were granted to cover the cost of treatment McGahan has pursued to reduce her pain, including physiotherapy, prolotherapy and massage therapy. 

Click here to read the full decision.