$30,000 Non-Pecuniary Assessment for Long Lasting Soft Tissue Injury With "Relatively Minimal" Impact
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for long lasting soft tissue injuries which had minimal impact on the Plaintiff’s daily function.
In this week’s case (Nair v. Cindric) the Plaintiff was involved in a 2009 collision. The Defendant admitted fault. The Plaintiff was 14 at the time and sustained a soft tissue injury to her upper back. Her symptoms carried on to the time of trial and were expected to continue indefinitely. Despite this the symptoms had “relatively little” impact on the Plaintiff’s daily function. In assessing non-pecuniary damages at $30,000 Mr. Justice Skolrood provided the following reasons:
[54] I find that Ms. Nair suffered a mild to moderate soft tissue injury to her upper back. The evidence establishes that she has suffered pain in her upper back since the date of the accident, which increases with physical activity. Her condition has improved over time although she still experiences pain and stiffness, again particularly when engaged in physical activity. Ms. Nair has also experienced lower back pain, although both the intensity and the frequency of the pain is less than with respect to her upper back pain.
[55] I also find that her back condition has had a moderate impact on Ms. Nair’s lifestyle and recreational pursuits. The evidence established that Ms. Nair did not miss any school as a result of the accident and that post-accident she continued to participate fully in her primary recreational activities of volleyball and Indian classical dance. Indeed, there was no evidence of a single volleyball practice or game, or any dance rehearsal or performance, missed because of her injuries. Moreover, it is apparent that she continued to excel at these activities as reflected in the fact that she was named most valuable player of her school volleyball team in 2010 and 2012 and that, as confirmed by her dance teacher, she performed extremely well at her graduation dance recital in September 2012.
[56] With respect to volleyball, it is worth noting that the position of libero normally played by Ms. Nair is physically demanding in that it requires the player to position herself low to the ground, to move laterally and often to dive to retrieve balls spiked by the opposing team.
[57] However, I accept her evidence that participation in these activities led to an increase in back pain due to the injury suffered in the accident. I also accept that Ms. Nair was required to take steps to alleviate the pain, such as regular stretching and use of over the counter medications like Advil.
[58] It is apparent from the evidence that Ms. Nair’s personality is such that she “soldiered on” despite the pain because of her passion for her pursuits, in particular, volleyball and dance.
[59] Going forward, Ms. Nair is likely to experience periodic flare-ups of her upper back pain, particularly when engaged in strenuous physical activities. The expert medical evidence suggests that it is unlikely that her upper back pain will resolve entirely…
[79] In assessing Ms. Nair’s claim for non-pecuniary damages, the Court must balance two potentially competing factors. On the one hand, as noted in Hejslet, she should not be penalized for her stoicism in continuing to pursue the activities that she is passionate about, albeit with some pain. On the other hand, an award of non-pecuniary damages is intended in part to compensate an injured party for impairment of physical abilities and loss of lifestyle. Here, the evidence is clear that while she continues to experience some pain four years after the accident, the impact on Ms. Nair’s lifestyle has been relatively minimal, as reflected in the fact that she not only continued in her activities uninterrupted but excelled at them.
[80] Taking all of the relevant circumstances into account, I find that a fair and reasonable award under this head is $30,000.