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$40,000 Non-Pecuniary Assessment for Intermittent, Lingering Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for lingering intermittent soft tissue injuries.

In today’s case (Erwin v. Buhler) the Plaintiff was involved in a 2011 rear end collision that the Defendant was responsible for.  The Plaintiff alleged that he suffered from bursitis in his hip due to the crash but the Court found this condition was most likely caused by other factors.  The Court did find the Plaintiff suffered various soft tissue injuries, some of which remained symptomatic on an intermittent basis at the time of trial.

In assessing non-pecuniary damages at $40,000 Mr. Justice Armstrong provided the following reasons:

[117]     I am, however, satisfied that the plaintiff suffered neck, low back and shoulder injuries as a result of the car accident. Notwithstanding Dr. McGraw’s assessment that the plaintiff no longer experiences headaches or neck pain, I find that he has in fact been troubled by these symptoms on an intermittent basis. His low back was really sore for about a month after which Dr. McGraw assumed the pain was resolved. I also accept that he has intermittent low back and neck pain.

[122]     I have concluded from all of the evidence that the plaintiff suffered neck, shoulder and low back injuries at the time of the accident. Although the symptoms seem to have mostly resolved within one year of the accident, he has continued to experience intermittent back, neck and shoulder problems related to activity.

[123]     It is difficult to discriminate between the impacts on the plaintiff’s life arising from the trochanter bursitis and the other soft tissue injuries he suffered. Nonetheless, I accept that he is at an age where the severity and duration of ongoing pain, albeit intermittent, is troublesome for him. His compensable injuries co-exist with his non-compensable injuries. I am satisfied that the demands of his work elevate his trochanter bursitis symptoms but also his neck and back symptoms. It is hard to estimate whether he will eventually become asymptomatic in his neck and back areas but I find that they will continue to impact his life in the near future. The defendant need not compensate the plaintiff for his hip complaints but, his overall quality of life seems to be affected by the compensable injuries on an intermittent but troublesome basis for him.

[124]     The cases cited by the plaintiff did not provide much assistance in assessing the plaintiff’s non-pecuniary damages. In my view, the circumstances described in Stein are most helpful to my assessment of the plaintiff’s claim in this case.

[125]     Overall, I am satisfied that the plaintiff is entitled to non-pecuniary damages of $40,000.

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